AMERIPRISE FINANCIAL INC v. CHARLES VALLANDINGHAM (2025)

Petitioner Ameriprise Financial, Inc. (“Ameriprise”) argues that the Circuit Court of Kanawha County erred in finding that Ameriprise fraudulently induced Respondent Charles E. Vallandingham (“Vallandingham”), a financial advisor working for Ameriprise as a franchisee, into buying the business of another Ameriprise financial advisor. Ameriprise claims that Vallandingham entered into a release agreement waiving any claim of fraudulent inducement against Ameriprise. We agree and reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ameriprise is a national broker of financial products such as stocks, bonds, exchange-traded funds, life insurance policies, and other financial products, and is regulated by the Financial Industry Regulatory Authority (“FINRA”). Ameriprise enters into franchise agreements with financial planners and advisors who operate as independent contractors and sell financial products to Ameriprise customers. Vallandingham is a licensed and certified financial planner authorized to sell various financial products. In December of 1999, Ameriprise and Vallandingham entered into an Independent Advisor Franchise Agreement (“Franchise Agreement”), and Vallandingham began working as an Ameriprise franchisee. In December of 2007, Vallandingham purchased a practice ¹ from a fellow Ameriprise advisor, Gary Enoch. After the completion of this purchase, Vallandingham had over 200 Ameriprise clients, and by early 2009, he was managing over $20 million in client assets.

In February of 2008, Ameriprise notified another one of its franchisees, Kenneth Beck (“Beck”), that he was in default of the financial planning standard of the Franchise Agreement ² for calendar year 2007. This standard required each Ameriprise advisor to produce a minimum of five plans or $3,000 in fees each year. Ameriprise informed Beck that he had until December 30, 2008, to cure the default. Beck failed to cure his default, and on January 7, 2009, Ameriprise sent him a notice informing him that it was terminating his Franchise Agreement and that he had ninety days to find a buyer for his practice. Under the terms of the Franchise Agreement, Ameriprise had a right of first refusal to purchase a franchisee's practice.

Ameriprise's policies and procedures for a franchisee's purchase of another franchisee's practice were set forth in its Succession Planning and Internal Practice Acquisition Manual (“Acquisition Manual”). The Acquisition Manual specifically provided that “each advisor should request a copy of their Compliance report to provide to the other.” The Acquisition Manual further explained that “[a]n advisor [cannot] request a report on behalf of another advisor,” and that “[t]he Company [cannot], legally, provide a purchaser with confidential information regarding a selling advisor[’s] compliance history and vice versa.” The Acquisition Manual also provided that the sale of a practice from one franchisee to another could not be considered valid until Ameriprise approved it. The Franchise Agreement included a similar provision that “[a]ny purported assignment or transfer not having the written consent of [Ameriprise] ․ shall be null and void.” The Franchise Agreement also provided that Ameriprise would not unreasonably withhold its consent to a transfer of practice. However, the Franchise Agreement qualified that Ameriprise could condition this consent on a release of all claims against Ameriprise.

Shortly after Beck received his termination notice, Vallandingham began negotiating for the purchase of Beck's practice. After initially discussing the possibility of the purchase with Beck and agreeing to meet later to discuss it in detail, Vallandingham called Ameriprise Franchise Field Vice President William C. Cupach (“Cupach”). Vallandingham asked Cupach whether Beck's Franchise Agreement was actually being terminated due to his failure to generate sufficient business, and Cupach confirmed that this was the reason. Vallandingham then asked “[i]s there anything else I need to know regarding this transaction?” Cupach responded “no.”

Vallandingham reviewed Beck's profile on BrokerCheck, a free online service operated by FINRA that provides background information on investment professionals. Vallandingham did not find any notations, disclosable events, complaints, or forgeries on Beck's FINRA record. Vallandingham also looked at Beck's compliance charges on his Ameriprise compensation statement. Vallandingham saw that Beck's compliance charges were the same as his own, and interpreted that to mean that Ameriprise had no compliance issues with Beck. However, Vallandingham did not ask Beck for a copy of or access to his internal Ameriprise compliance report. At that time, Beck's compliance report included multiple references to past compliance issues.

In March of 2009, Vallandingham and Beck executed a Buy/Sell Agreement under which Vallandingham agreed to purchase Beck's practice for $75,000.³ Shortly thereafter, Vallandingham, Beck, and Ameriprise executed a “Consent to Transition Agreement and Release of Claims” (“Consent and Release”) under which Ameriprise provided its consent—as required under the Franchise Agreement—for the Buy/Sell Agreement, and waived its right of first refusal to purchase Beck's practice. The Consent and Release, which referred to the Buy/Sell Agreement as a “Transition Agreement” or “Succession Agreement,” included a provision (the “Due Diligence Clause”) under which the parties agreed they had independently investigated the transaction and disclaimed reliance on any representations by Ameriprise:

Transferring Advisor and Acquiring Advisor each acknowledges that he/she has independently entered into the Transition Agreement, that each has conducted any due diligence or investigation he/she deems appropriate, has made an independent assessment of the Transition Agreement, and has not relied upon any representation or action by Ameriprise in deciding to enter into the Succession Agreement. Transferring Advisor and Acquiring Advisor each acknowledge that Ameriprise is not a party to the Transition Agreement, and that Ameriprise's consent to the Transition Agreement pursuant to the Franchise Agreement does not constitute an adoption or approval of the terms of the Transition Agreement.

In addition, Vallandingham waived any claims against Ameriprise related to the Buy/Sell Agreement (the “Release Clause”):

In consideration of Ameriprise's consent to the Transition Agreement, Acquiring Advisor hereby releases all rights or claims, known or unknown, he/she has or may have now to any relief of any kind from Ameriprise and any company related to or affiliated with Ameriprise in the present or past, Ameriprise's present or past officers, directors, employees, and any person who acted on behalf of Ameriprise or on instructions from Ameriprise, relating to or arising from the negotiation of, execution of, implementation of, or performance by the Transferring Advisor of any obligation under the Transition Agreement. Notwithstanding the previous sentence, nothing in this paragraph shall constitute a release of any claim that Acquiring Advisor has or may have against Transferring Advisor relating to or arising out of the Transition Agreement.

After completing the agreement and taking on Beck's clients, Vallandingham began noting what he perceived as issues with Beck's prior interactions and transactions with those clients. Among other things, Vallandingham found that Beck had borrowed $500 from one client, which was a FINRA violation. Vallandingham also determined that Beck had sold some clients financial products that Vallandingham perceived as disadvantageous for their situations, including life insurance policies that he believed were likely to be insolvent. Vallandingham encouraged several of these clients to file complaints with Ameriprise. Vallandingham perceived that addressing these issues with Beck's former clients took up a disproportionate amount of his time, and that resolving these issues damaged his practice and reputation.

On February 4, 2010, Beck filed the underlying complaint in the Circuit Court of Kanawha County, alleging that Vallandingham breached the Buy/Sell Agreement by failing to pay Beck $75,000 for his practice. On July 22, 2010, Vallandingham filed a third-party complaint against Ameriprise, alleging claims of negligence, violations of regulations, breach of contract, and unjust enrichment.

On November 8, 2010, Ameriprise filed a motion for summary judgment on Vallandingham's claims, arguing that Vallandingham's claims were barred under the Consent and Release. On February 18, 2011, the circuit court entered an order denying Ameriprise's motion for summary judgment. The circuit court found that the Release Clause of the Consent and Release applied to Vallandingham's claims, but denied the motion “to permit discovery of whether Ameriprise committed fraud or collusion upon Vallandingham, or was somehow negligent toward Vallandingham.” On May 2, 2011, Vallandingham filed a motion to amend his third-party complaint to add claims for joint venture and fraud. On February 24, 2012, the circuit court entered a partial dismissal order dismissing all of Beck's claims, with prejudice, for failure to prosecute, and the case continued on Vallandingham's third-party complaint against Ameriprise. The circuit court granted Vallandingham's motion for leave to file an amended third-party complaint, and on July 3, 2013, he filed his amended third-party complaint, raising claims for a violation of regulations, negligence, breach of contract, and unjust enrichment.

On September 26, 2013, Ameriprise filed a second motion for summary judgment. Among other arguments, Ameriprise asserted that Vallandingham's claims were barred by the Due Diligence and Release Clauses of the Consent and Release. On October 10, 2013, Ameriprise filed a pre-trial memorandum, reiterating the legal argument that Vallandingham's claims were barred by the Consent and Release. Vallandingham filed a pre-trial memorandum on October 15, 2013, adding a claim that Ameriprise fraudulently induced Vallandingham to enter the Buy/Sell Agreement, or fraudulently concealed material information. The circuit court held a pre-trial conference on October 15, 2013, in which it heard argument on Ameriprise's pending motion for summary judgment. The circuit court recognized that it had just received Vallandingham's pre-trial memorandum, which contained “additional theories of liability.” The circuit court ultimately ruled that summary judgment was not warranted because there were issues of fact regarding whether Vallandingham was fraudulently induced to enter the Buy/Sell Agreement.

The nine-day bench trial in this matter began on October 21, 2013. At trial, Vallandingham primarily pursued a theory that Ameriprise fraudulently induced him to purchase Beck's practice by misrepresenting or concealing Beck's compliance issues. At trial, counsel for Ameriprise again argued that the Consent and Release was a bar to Vallandingham's claims, beginning in its opening statement. At the close of Vallandingham's evidence, on the sixth day of trial, Ameriprise made a motion for judgment as a matter of law on Vallandingham's fraud claim. Among other arguments, Ameriprise again asserted that Vallandingham's claim was barred by the Consent and Release. The circuit court denied this motion on the record. Ameriprise renewed its motion for judgment as a matter of law on the ninth and final day of the bench trial, and the circuit court denied the motion again. The circuit court directed counsel for each party to submit proposed findings of fact and conclusions of law.

The parties submitted their proposed orders with findings of fact and conclusions of law on January 28, 2014. Ameriprise's proposed order included a finding that Vallandingham released his fraud claim against Ameriprise under the Consent and Release, specifically the Due Diligence and Release Clauses.

Over ten years later, on July 30, 2024, the circuit court entered its final order.⁴ The circuit court did not explicitly address the Consent and Release in the final order. However, the circuit court rejected the argument that contractual disclaimers barred Vallandingham's fraud claim. Specifically, the circuit court quoted the Supreme Court of Appeals of West Virginia's (“SCAWV”) explanation that “[i]n the same way that fraud is recognized as an exception to the [parol] evidence rule, fraud is similarly recognized to be an exception to the contractual language typically found in an integration or merger clause which seeks to limit one party's liability to the other.” Traders Bank v. Dils, 226 W. Va. 691, 696, 704 S.E.2d 691, 696 (2010).

The circuit court concluded that Vallandingham proved his claim that Ameriprise fraudulently induced him to enter the Buy/Sell Agreement to buy Beck's practice. Further, the circuit court found that Vallandingham could not have independently verified Beck's compliance history and discovered the issues in his practice without reviewing his internal compliance file. The circuit court determined that Ameriprise had no duty to disclose Beck's internal compliance file to Vallandingham. However, the circuit court concluded that when Vallandingham asked Cupach “[i]s there anything else I need to know regarding this transaction?” and Cupach responded “no,” Cupach—and therefore Ameriprise—made a material misrepresentation to Vallandingham. The circuit court found that Vallandingham justifiably relied on this misrepresentation in buying Beck's practice, and that he was subsequently damaged. The circuit court entered judgment in favor of Vallandingham and against Ameriprise in the total amount of $1,320,794.

It is from the July 30, 2024, final order that Ameriprise now appeals.

II. STANDARD OF REVIEW

The SCAWV has set forth a multi-pronged standard of review for circuit court orders entered after a bench trial:

In reviewing challenges to the findings and conclusions of the circuit court made after a bench trial, a two-pronged deferential standard of review is applied. The final order and the ultimate disposition are reviewed under an abuse of discretion standard, and the circuit court's underlying factual findings are reviewed under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. Pt. 1, Pub. Citizen, Inc. v. First Nat. Bank in Fairmont, 198 W. Va. 329, 480 S.E.2d 538 (1996). “Further, ‘we apply a de novo standard of review to [a] circuit court's interpretation of [a] contract.’ ” Wheeling Jesuit Univ., Inc. v. Voorhees, 250 W. Va. 674, 677, 907 S.E.2d 572, 575 (Ct. App. 2024) (quoting Home Inspections of VA and WV, LLC v. Hardin, 244 W. Va. 173, 176, 852 S.E.2d 240, 243 (2020)).

III. DISCUSSION

Ameriprise raises three assignments of error on appeal. However, because we find the first assignment of error to be dispositive, we will not address the other two. In its first assignment of error, Ameriprise contends that the circuit court erred in not entering judgment as a matter of law on Vallandingham's fraud claim.⁵ Among other reasons it believes it was entitled to judgment, Ameriprise argues that Vallandingham waived his fraud claim under the Due Diligence and Release Clauses of the Consent and Release. We agree.

As discussed above, the circuit court did not explicitly address the Consent and Release in its final order. Rather, the circuit court found, generally, that merger clauses in contracts could not waive fraud claims. Specifically, the circuit court quoted the SCAWV's explanation that “[i]n the same way that fraud is recognized as an exception to the [parol] evidence rule, fraud is similarly recognized to be an exception to the contractual language typically found in an integration or merger clause which seeks to limit one party's liability to the other.” Traders Bank v. Dils, 226 W. Va. 691, 696, 704 S.E.2d 691, 696 (2010) (citations omitted). On appeal, Vallandingham relies on Traders Bank in arguing that the Consent and Release did not bar his fraud claim.

In relying on this language from Traders Bank, both the circuit court and Vallandingham misinterpret the nature of the relevant provisions of the Consent and Release for two reasons. First, the Due Diligence Clause of that agreement is not a merger or integration clause. Second, the Consent and Release is a separate contract from the Buy/Sell Agreement.

As the SCAWV has explained, “[a] merger clause is [a] provision in a contract to the effect that the written terms may not be varied by prior or oral agreements because all such agreements have been merged into the written document.” TD Auto Fin. LLC v. Reynolds, 243 W. Va. 230, 234, 842 S.E.2d 783, 787 (2020) (quoting Frederick Bus. Properties Co. v. Peoples Drug Stores, Inc., 191 W. Va. 235, 240 n.2, 445 S.E.2d 176, 181 n.2 (1994)). By its plain terms, the Due Diligence Clause in the Consent and Release is not a merger or integration clause. Rather, it is an explicit provision by which the parties specifically disclaimed reliance on any representation by Ameriprise in deciding to enter into a separate Buy/Sell Agreement. In In re Marine Energy Sys. Corp., 299 F. App'x 222 (4th Cir. 2008)—one of the cases the SCAWV specifically relied on in Traders Bank—the Fourth Circuit recognized that this type of provision, characterized as a “non-reliance” clause, is distinct from a merger clause. See In re Marine Energy Sys. Corp., 299 F. App'x 222, 228-30 (4th Cir. 2008) (discussing merger and non-reliance clauses).⁶ Critically, unlike merger clauses, non-reliance clauses specifically disclaim the parties’ reliance on outside representations in the decision to enter the contract and therefore bar misrepresentation claims, including fraud. See In re Marine, 299 F. App'x 222, 230-32 (affirming summary judgment on fraud claim based on non-reliance clause). As one federal court has explained, “the purpose of such a clause is to head off a suit for fraud.” Extra Equipamentos E Exportacao Ltda. v. Case Corp., 541 F.3d 719, 724 (7th Cir. 2008).

Therefore, contrary to the circuit court's implicit conclusion that the Due Diligence Clause in the Consent and Release is a merger clause that does not exclude a fraud claim, we now find that said clause is a non-reliance clause plainly intended to bar fraudulent inducement claims like Vallandingham's. However, we need not decide whether a non-reliance clause in a contract would be enforceable as a waiver of a fraudulent inducement claim by one party to that contract against another. Here the circuit court found that Ameriprise fraudulently induced Vallandingham to enter the Buy/Sell Agreement to purchase Beck's practice. However, Ameriprise was not a party to the Buy/Sell Agreement, and the non-reliance clause at issue was in a separate agreement, the Consent and Release. Therefore, the issue before this Court is not whether a clause in a contract can waive a party's claim that it was fraudulently induced to enter that contract; rather, the issue is whether a party can release a fraudulent inducement claim against a non-party to the contract through a separate agreement.⁷

A. Consent and Release Language

Having framed the issue, we now consider Ameriprise's argument that Vallandingham waived and released his fraud claim in the Consent and Release. “A valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent.” Syl. Pt. 3, Miller v. WesBanco Bank, Inc., 245 W. Va. 363, 859 S.E.2d 306 (2021) (quoting Syl. Pt. 1, Sally-Mike Properties v. Yokum, 175 W. Va. 296, 332 S.E.2d 597 (1985)). “If language in a contract is found to be plain and unambiguous, such language should be applied according to such meaning.” Fraternal Ord. of Police, Lodge No. 69 v. City of Fairmont, 196 W. Va. 97, 101, 468 S.E.2d 712, 716 (1996).

As a general matter, the SCAWV enforces contracts releasing claims. Donahue v. Mammoth Restoration & Cleaning, 246 W. Va. 398, 405, 874 S.E.2d 1, 8 (2022) (affirming circuit court's conclusion that release in settlement agreement barred breach of contract and bad faith claims against insurer); Perrine v. E.I. du Pont de Nemours & Co., 225 W. Va. 482, 513-14, 694 S.E.2d 815, 846-47 (2010) (affirming circuit court's enforcement of releases to bar claims of reckless and wanton conduct). While these contracts typically arise in the context of settlement agreements, the SCAWV has also explained that “settlement agreements are contracts and therefore, ‘are to be construed as any other contract.’ ” Donahue, 246 W. Va. at 404, 874 S.E.2d at 7 (quoting Burdette v. Burdette Realty Improvement, Inc., 214 W. Va. 448, 452, 590 S.E.2d 641, 645 (2003) (per curiam)). Moreover, the SCAWV has enforced contracts releasing claims outside the settlement context. See McKeny Const. Co. v. Town of Rowlesburg, 187 W. Va. 521, 525, 420 S.E.2d 281, 285 (1992) (per curiam). Indeed, the SCAWV has held that pre-injury exculpatory releases waiving claims for intentional misconduct can be enforceable if the circumstances clearly indicate the plaintiff's intent to waive such claims. See Syl. Pt. 2, Murphy v. N. Am. River Runners, Inc., 186 W. Va. 310, 412 S.E.2d 504 (1991).

We find that the Consent and Release is unambiguous and that Vallandingham plainly waived any claim that Ameriprise fraudulently induced him to enter the Buy/Sell agreement. The Release Clause provides that:

[Vallandingham] releases all rights or claims, known or unknown, [he] has or may have now to any relief of any kind from Ameriprise and any company related to or affiliated with Ameriprise in the present or past, Ameriprise's present or past officers, directors, employees, and any person who acted on behalf of Ameriprise or on instructions from Ameriprise, relating to or arising from the negotiation of, execution of, implementation of, or performance by the Transferring Advisor of any obligation under the Transition Agreement.

We find that this language plainly contemplates a fraud claim like the one at issue in this case. After initial discussions with Beck about buying his practice, Vallandingham called Cupach to ask questions about Beck's practice. Subsequently, he filed a fraud claim against Ameriprise based on Cupach's answer to one of those questions. This claim was clearly “relating to or arising from” the negotiation, execution, and implementation of the Buy/Sell Agreement. While the Release Clause alone is clear, the Due Diligence Clause reinforces that Vallandingham waived any claim that Ameriprise fraudulently induced him to enter the Buy/Sell Agreement:

[Vallandingham] acknowledges that [he] has independently entered into the [Buy/Sell], that [he] has conducted any due diligence or investigation [he] deems appropriate, has made an independent assessment of the [Buy/Sell] Agreement, and has not relied upon any representation or action by Ameriprise in deciding to enter into the [Buy/Sell] Agreement.

As discussed above, the Due Diligence Clause is a non-reliance clause specifically intended to foreclose fraudulent inducement claims. We find that these clauses demonstrate that Vallandingham waived and released any claim that Ameriprise fraudulently induced him to enter the Buy/Sell Agreement.

Beyond his reliance on Traders Bank, which we have already addressed, Vallandingham offers four reasons evidencing that he did not waive his fraud claim by signing the Consent and Release. First, Vallandingham argues that Ameriprise cannot maintain that it is not a party to a contract and simultaneously claim its protection. This argument conflates the Buy/Sell Agreement with the Consent and Release. Ameriprise was not a party to the Buy/Sell Agreement, but it was a party to the Consent and Release, which is the contract it relies on. Next, Vallandingham argues that the Due Diligence Clause in the Consent and Release only applies to affirmative misrepresentations, rather than concealment. However, as discussed, the circuit court found that Ameriprise committed fraud based on an affirmative misrepresentation—Cupach's answer “no” to Vallandingham's inquiry if there was anything else he needed to know—so we find that this argument is also unavailing.

Third, Vallandingham argues that the Consent and Release only purports to release Ameriprise for the actions of Beck. Vallandingham points to the language in the Release Clause releasing claims against Ameriprise “relating to or arising from the negotiation of, execution of, implementation of, or performance by the Transferring Advisor of any obligation under the [Buy/Sell] Agreement,” specifically emphasizing the “by the Transferring Advisor” language. While Vallandingham does not explain this argument precisely, he appears to be arguing that the “by the Transferring Advisor” language in the final item in the series in this clause should be read to apply to each item. As best we can understand this argument, Vallandingham suggests that this clause should be read to say that he released claims against Ameriprise “relating to or arising from the negotiation [by the Transferring Advisor] of, execution [by the Transferring Advisor] of, implementation [by the Transferring Advisor] of, or performance by the Transferring Advisor of any obligation under the [Buy/Sell] Agreement.” We find this reading to be contrary to the plain reading of this clause and decline to employ it.⁸

Finally, Vallandingham asserts that “Ameriprise did not negotiate the [Buy/Sell Agreement], so [Vallandingham] is not seeking to hold Ameriprise responsible for negotiation of the agreement.” This too is unavailing. As discussed above, the Release Clause contemplates a release of all claims “relating to or arising from” the negotiation of the Buy/Sell agreement. It is undisputed—indeed, it is the linchpin of Vallandingham's fraud claim—that Vallandingham was specifically seeking information about Beck's practice in service of Vallandingham's plan to buy Beck's practice when Cupach answered the fraudulent “no” to Vallandingham's question about Beck's practice. Plainly, a fraud claim based on this conversation was related to and arose from Vallandingham's negotiation of the Buy/Sell Agreement.

Therefore, under the plain terms of the Consent and Release, Vallandingham waived and released his claim that Ameriprise fraudulently induced him to enter the Buy/Sell Agreement to buy Beck's practice.⁹

B. Unconscionability

While we determine that Vallandingham waived his fraud claim under the plain terms of the Consent and Release, we find it prudent to consider whether the Consent and Release is unenforceable under the doctrine of unconscionability. We conclude that it is not unconscionable.

The SCAWV has held that “[t]he doctrine of unconscionability means that, because of an overall and gross imbalance, one-sidedness or lop-sidedness in a contract, a court may be justified in refusing to enforce the contract as written.” Syl. Pt. 12, in part, Brown ex rel. Brown v. Genesis Healthcare Corp., 228 W. Va. 646, 724 S.E.2d 250 (2011) (“Brown I”).¹⁰ “Unconscionability is an equitable principle, and the determination of whether a contract or a provision therein is unconscionable should be made by the court.” Syl. Pt. 1, Troy Min. Corp. v. Itmann Coal Co., 176 W. Va. 599, 346 S.E.2d 749 (1986). A court that finds a contract or clause unconscionable “may refuse to enforce the contract, enforce the remainder of the contract without the unconscionable clause, or limit the application of any unconscionable clause to avoid any unconscionable result.” Brown I, 228 W. Va. 646, 724 S.E.2d 250, syl. pt. 16, in part. The SCAWV has emphasized that unconscionability must be decided “on a case-by-case basis,” Syl. Pt. 9, in part, Dan Ryan Builders, Inc. v. Nelson, 230 W. Va. 281, 737 S.E.2d 550 (2012), “taking into consideration all of the facts and circumstances of a particular case.” Brown I, 228 W. Va. 646, 724 S.E.2d 250, syl. pt. 12.

Unconscionability has two components: procedural unconscionability and substantive unconscionability. See Brown I, 228 W. Va. 646, 724 S.E.2d 250, syl. pt. 20. “To be unenforceable, a contract term must—‘at least in some small measure’—be both procedurally and substantively unconscionable.” Dan Ryan Builders, 230 W. Va. at 289, 737 S.E.2d at 558 (quoting State ex rel. Johnson Controls, Inc. v. Tucker, 229 W. Va. 486, 498-99, 729 S.E.2d 808, 820-21 (2012)). We find that the Consent and Release is neither procedurally nor substantively unconscionable.

“Procedural unconscionability arises from inequities, improprieties, or unfairness in the bargaining process and the formation of the contract, inadequacies that suggest a lack of a real and voluntary meeting of the minds of the parties.” Dan Ryan Builders, 230 W. Va. at 289, 737 S.E.2d at 558 (citing Brown I, 228 W. Va. 646, 724 S.E.2d 250, syl. pt. 17). Factors that influence procedural unconscionability include “the age, literacy, or lack of sophistication of a party; hidden or unduly complex contract terms; the adhesive nature of the contract; and the manner and setting in which the contract was formed, including whether each party had a reasonable opportunity to understand the terms of the contract.” Brown I, 228 W. Va. 646, 724 S.E.2d 250, syl. pt. 17.

Considering these factors, we conclude that the Consent and Release was not procedurally unconscionable. The Consent and Release is a contract of adhesion, in that it was a form contract drafted by Ameriprise for franchisees engaging in the purchase of a practice, such as Vallandingham, to either take or leave. However, the SCAWV has recognized that the determination that an agreement is a contract of adhesion is merely the beginning of the analysis, and that such contracts are “generally enforceable.” Brown I, 228 W. Va. at 682, 724 S.E.2d at 286.¹¹ Moreover, Vallandingham is a sophisticated party: at the time he executed the Consent and Release he was a certified financial planner who had been an Ameriprise franchisee for almost ten years, he was managing hundreds of clients with over $20 million in assets, and he had already purchased a practice from another franchisee. The Consent and Release was also not lengthy or complex; it was only two pages and contained only nine provisions, and neither the Release Clause nor the Due Diligence Clause was complicated or hidden. Indeed, the Release Clause specifically provides that the release of claims is provided “[i]n consideration of Ameriprise's consent to the Transition Agreement.” In other words, the Release Clause is explicitly denoted as the linchpin of the Consent and Release Agreement. Finally, we note that Vallandingham initiated the negotiation to purchase Beck's practice that led to the Consent and Release, and that he had the opportunity to understand the terms of the Consent and Release, having already executed the same agreement in 2007 when he bought another practice. Considering these factors, we find that the Consent and Release was not procedurally unconscionable.

Though the absence of procedural unconscionability is sufficient to find that the Consent and Release was not unconscionable, see Dan Ryan Builders, 230 W. Va. at 289, 737 S.E.2d at 558, we will also analyze substantive unconscionability. The SCAWV has explained that “[s]ubstantive unconscionability involves unfairness in the terms of the contract itself, and arises when a contract term is so one-sided that it has an overly harsh effect on the disadvantaged party.” Id. (citing Brown I, 228 W. Va. 646, 724 S.E.2d 250, syl. pt. 19). While “[t]he factors to be weighed in assessing substantive unconscionability vary with the content of the agreement[,] [g]enerally, courts should consider the commercial reasonableness of the contract terms, the purpose and effect of the terms, the allocation of the risks between the parties, and public policy concerns.” Brown I, 228 W. Va. 646, 724 S.E.2d 250, syl. pt. 19.

The terms of the Consent and Release applicable to Ameriprise and Vallandingham were not one-sided in favor of Ameriprise. Put simply, Ameriprise waived its right of first refusal to purchase Beck's practice and consented to Vallandingham's purchase of the practice in exchange for Vallandingham releasing any claims against Ameriprise relating to that transaction, including any claim that he relied on any representation from Ameriprise. There is nothing overly harsh or uneven about these terms: in giving up its own right to purchase Beck's practice, Ameriprise simply required that Vallandingham perform his own due diligence and not seek to hold Ameriprise liable related to the transaction. Looking at this agreement, in light of the facts of this case, as the SCAWV instructs, we find that this exchange was eminently reasonable. Ameriprise specifically informed its franchisees that it would not release a franchisee's internal compliance report without the franchisee's consent. Yet in this matter, Ameriprise was held liable for fraud because one of its executives, when asked by Vallandingham if there was anything else he needed to know about Beck's practice, did not disclose Beck's internal compliance history to Vallandingham, despite Vallandingham's failure to seek Beck's consent for that disclosure. Given these conflicting obligations, we conclude that it was reasonable for Ameriprise to exchange its right to purchase a practice for a release of any claims, including misrepresentation claims, related to the transfer of that practice between franchisees.

Finally, we find that the public policy concerns do not support a finding of substantive unconscionability.¹² The SCAWV has held that “[t]his State's public policy favors freedom of contract which is the precept that a contract shall be enforced except when it violates a principle of even greater importance to the general public.” Syl. Pt. 3, Wellington Power Corp. v. CNA Sur. Corp., 217 W. Va. 33, 614 S.E.2d 680 (2005).¹³ As this Court has recognized “sophisticated parties dealing at arm's length in complicated financial transactions should be free to structure their relationships to suit their needs.” PITA, LLC v. Segal, 249 W. Va. 26, 43 n.39, 894 S.E.2d 379, 396 n.39 (Ct. App. 2023). Moreover, under West Virginia law, although a buyer can generally rely on representations from a seller, “if he undertakes to inform himself from other sources as to matters easily ascertainable, by personal investigation, and the defendant has done nothing to prevent full inquiry, he will be deemed to have relied upon his own investigation and not upon the representations of the seller.” Syl. Pt. 5, in part, Cordial v. Ernst & Young, 199 W. Va. 119, 483 S.E.2d 248 (1996). Therefore, beyond the fact that Ameriprise was not even the seller in this context, in signing the Consent and Release, Vallandingham merely contracted to do what West Virginia law already allows: eliminate reliance on outside representations by performing his own investigation of the Buy/Sell Agreement. Accordingly, we find that public policy concerns do not support a finding of substantive unconscionability.

Based on the foregoing discussion, we find that the Consent and Release is not substantively unconscionable. Since the Consent and Release is neither procedurally nor substantively unconscionable, we conclude that it is not unconscionable. Having previously concluded that, under the plain and unambiguous terms of the Consent and Release, Vallandingham waived the fraud claim at issue in this matter, and given that the Consent and Release is enforceable, we now conclude that the circuit court erred as a matter of law in finding that the Consent and Release did not bar Vallandingham's fraud claim. Accordingly, we reverse the circuit court's final order entering judgment in favor of Vallandingham.

IV. CONCLUSION

For the foregoing reasons, we reverse the July 30, 2024, final order entering judgment in favor of Vallandingham.

Reversed.

It has long been a fundamental principle of the law that “[a] rogue cannot protect himself from liability for his fraud by inserting a printed clause in his contract.” Ernst Iron Works v. Duralith Corp., 200 N.E. 683, 684 (N.Y. 1936). The majority opinion dispenses with this principle and creates a new one, holding that a boilerplate clause slipped into a contract of adhesion can absolve the contract's drafter of liability for any and all fraud. This new principle of law – giving conclusive legal effect to “non-reliance” contract clauses – was not briefed by the parties. Instead, it was created to reach the majority's preferred result. However, the SCAWV has said that when “one person induces another to enter into a contract by false representations,” a tort action lies for damages. Syl. Pt. 1, Horton v. Tyree, 104 W. Va. 238, 139 S.E. 737 (1927).¹ I respectfully dissent because the majority opinion creates new law that is contrary to the policy stated by the SCAWV in Horton.

1. Half-truths are actionable misrepresentations

To understand the flaws in the principle of law adopted in the majority opinion, one must see the facts and legal theory upon which the circuit court based its judgment in favor of the plaintiff. The majority opinion undermines the circuit court's finding of fraud without explaining either its breadth or basis. In so doing, the majority avoided discussing the long-standing concept of the “half-truth,” which essentially provides that a half-truthful statement is as misleading as a statement that is completely false, and, as such, is actionable as a fraud or misrepresentation. Once a person chooses to speak, they must speak truthfully and disclose the whole truth.

Here, the plaintiff, Charles Vallandingham, is an “independent advisor” with a franchise from defendant Ameriprise. Ameriprise's franchise agreement requires advisors to create new business every year. Throughout 2007, another Ameriprise advisor, Kenneth Beck, failed to generate that new business. Accordingly, in February 2008, Ameriprise told Beck he was in default of his franchise agreement and had until the end of 2008 to cure. Beck failed to cure his default.

On January 7, 2009, Ameriprise told Beck it had terminated his franchise. What the majority opinion omits is that Beck was also told he had 90 days to sell his practice; if he failed to do so, Ameriprise would assume control of Beck's clients and Beck would receive nothing from Ameriprise. This fact is central to Vallandingham's trial strategy, because it shows Ameriprise's motivation behind its later misrepresentation: either that another Ameriprise advisor had to buy the practice from Beck, or Ameriprise would assume the practice and all of the problems buried therein.

The majority opinion does not mention that Ameriprise had viewed Beck as a problematic advisor as early as 2004. For example, that year, Ameriprise discovered Beck had sold an improper annuity to a client to generate quick, upfront fees for himself. Ameriprise reversed the transaction and fined Beck $847, but it failed to report Beck to FINRA even though the transaction clearly violated FINRA rules. In another 2004 case, Beck sold a client an unsuitable financial product that generated high commissions for himself but endangered the client's investment; Ameriprise found that transaction also violated various rules and fined Beck $1,500. The record over the years goes on: Beck took cash out of a client's account and bought high-commission annuities without the client's permission; Ameriprise fined him $2,000 for that conduct but failed to report it to FINRA. Beck also convinced an elderly client to buy a $125,000 insurance policy and to pay the premiums (for which Beck got a commission) using money from the client's IRA; the IRA withdrawals generated tax penalties, such that the client's out-of-pocket expenses were near $200,000 for the $125,000 policy. Beck swindled a client, who was elderly and had Stage IV cancer, into buying an annuity that secured hefty fees for Beck but locked up the client's money so that it could not be withdrawn without severe penalties. Beck convinced other clients to buy insurance policies secured with stock market assets, but when the stock market collapsed in 2008, the value of the policies dropped to zero. Still, because Beck was receiving commissions on those policies, he did not tell those clients their policies were worthless and got them to keep paying premiums.

Ameriprise monitors its advisors to ensure that they are following company, state, federal, and FINRA regulations. Ameriprise built a “compliance file” on Beck that includes the investigation findings, complaints, reprimands, and fines against Beck during the five years prior to its terminating his franchise. The compliance file shows that, after sending Beck his notice of default in February 2008, Ameriprise found Beck was ignoring attempts at oversight. Ameriprise escalated its “surveillance” of Beck and discovered his investments for clients were problematic. For instance, Ameriprise found “definite forgeries” by Beck of his clients’ signatures on investment documents. These forgeries were required to be reported to FINRA; however, Ameriprise made no report.

Importantly, Ameriprise's compliance file notes that the executive in charge of supervising Beck, William C. Cupach, was aware of many of Beck's issues. For example, the record shows that if a financial advisor “has forged a signature,” Cupach would “immediately get a phone call.” Cupach worked with other Ameriprise employees in phone calls discussing Beck's failure to follow corporate oversight policies. One document in Beck's file shows those Cupach phone calls resulted in Ameriprise levying a $500 fine against Beck in December 2008. Cupach later testified that Beck's franchise could have been terminated for any of the numerous issues listed above. However, as the majority opinion recites, Cupach further testified that Beck's franchise was terminated solely due to his failure to meet the franchise agreement quota of new business.

Plaintiff Vallandingham had no idea Ameriprise had a thick compliance file on Beck, but he quickly learned in early 2009 that Beck lost his franchise for failing to produce new business, and that he was trying to sell his practice. Testimony at trial showed that the typical way an Ameriprise independent advisor grows his or her business is by buying the practice of departing advisors. By 2008, Vallandingham had about 208 clients. Beck had roughly 201 clients doing $13 million in business through Ameriprise. Vallandingham offered Beck $75,000,² and shortly thereafter, Beck spoke with Vallandingham and showed him a few general documents regarding his practice.

After speaking with Beck, Vallandingham called Cupach, the Ameriprise executive in charge of his region. First, Vallandingham asked Cupach if Beck was “really” being terminated for not creating new business. Cupach confirmed that was the reason. Vallandingham then asked Cupach: “Is there anything else I need to know regarding this transaction?” Cupach replied, “No.” Cupach does not deny this comment. That comment is the linchpin of the plaintiff's fraud case against Ameriprise.

Standing alone, Cupach's “no” might look like a thin reed to hang a million-dollar verdict on. Nevertheless, when the circuit judge weighed the comment in light of the fact that Cupach was aware of Beck's numerous ethical, legal, and regulatory violations (all in his compliance file), and of the reality that anyone who bought Beck's practice would have a difficult time discovering the bad conduct without Beck's cooperation, the comment was damning to Ameriprise's case. Further, Cupach knew that, if Vallandingham did not buy Beck's practice, Ameriprise (and Cupach's region) would inherit Beck's practice by default.³ Any reasonable factfinder could conclude that Cupach knew Vallandingham was buying a firestorm of problems, that Cupach could have remained silent or said something more informative, but that he instead concealed those problems behind a simple “no, there was nothing Vallandingham needed to know.”

Cupach's comment falls into a class of fraud known as the “half-truth.” A half-truth is a statement by a defendant that, while perhaps technically accurate, is misleading because it omits some qualifying information that, if known to the plaintiff, would have caused him to act differently. The drafters of the Restatement define a half-truth misrepresentation this way:

A representation stating the truth so far as it goes but which the maker knows or believes to be materially misleading because of his failure to state additional or qualifying matter is a fraudulent misrepresentation.

Restatement (Second) of Torts, § 529 (1977). The drafters commented that “[a] statement containing a half-truth may be as misleading as a statement wholly false.” Id., cmt. a. That comment mirrors one by the United States Supreme Court, which once explained that “a statement of a half-truth is as much a misrepresentation as if the facts stated were untrue.” Equitable Life Ins. Co. of Iowa v. Halsey, Stuart & Co., 312 U.S. 410, 426 (1941). Half-truths arise regardless of whether a person has a duty to speak or make a representation. Irrespective of whether one has a duty to speak, once a person chooses to do so they must speak truthfully. A half-truth misrepresentation may occur, not when one is silent, but when one volunteers to speak and provides information to influence another but fails to disclose the whole truth.

A duty to speak may arise from partial disclosure, the speaker being under a duty to say nothing or to tell the whole truth ․ Although a party may keep absolute silence and violate no rule of equity, yet, if he volunteers to speak and to convey information which may influence the conduct of the other party, he is bound to disclose the whole truth.

Uptegraft v. Dome Petroleum Corp., 764 P.2d 1350, 1353-54 (Okla. 1988).

West Virginia does not appear to have directly addressed the half-truth question. However, case law nationwide supports a cause of action for misrepresentation based on half-truths, and it has done so for over a century.⁴ Once a person chooses to speak, they must speak truthfully. Good public policy demands this, because the law does not, and cannot, sanction lies as a way of doing business. The circuit court recognized this and found Ameriprise liable for Cupach's half-truth misrepresentation toward Vallandingham: if Cupach had remained silent, or if Cupach had honestly represented the poor state of Beck's business, Vallandingham would not have bought it. The majority opinion chose not to address any of Ameriprise's arguments challenging the circuit court's misrepresentation rulings.

2. Non-reliance clauses cannot be boilerplate or vague; they must be specific

Instead of addressing the substance of the parties’ arguments regarding Cupach's half-truth misrepresentation, the majority opinion built its non-reliance principles on two sentences from Ameriprise's briefs. Surprisingly, however, the non-reliance clause in the Consent and Release document is addressed nowhere in the sixty pages of Ameriprise's briefs. Nor did Ameriprise cite to a single case discussing those types of clauses. Rather, the two sentences discuss what Ameriprise calls a “buyer beware” clause. In these sentences, Ameriprise argues that plaintiff Vallandingham knew he was buying Beck's practice “as is,” and therefore he could not rightfully pursue a fraudulent concealment claim against Ameriprise.⁵

The majority opinion recognizes that exculpatory contract language, such as an “integration or merger clause which seeks to limit one party's liability to the other[,]” is unenforceable to extinguish a fraud claim. Traders Bank v. Dils, 226 W. Va. 691, 696, 704 S.E.2d 691, 696 (2010). An “as is” clause is also unenforceable. Stemple v. Dobson, 184 W. Va. 317, 322, 400 S.E.2d 561, 566 (1990). In Syllabus Point 3 of Iafolla v. Douglas Pocahontas Coal Corp., 162 W. Va. 489, 250 S.E.2d 128 (1978), the SCAWV said that in the presence of “fraud, mistake, or material misrepresentations,” extrinsic or parol evidence may be admissible in a contract action. Extrinsic evidence of fraud does not contradict or vary terms of a written contract; it shows there was no meeting of the minds and no binding contract was ever made. Stated succinctly, in the past, West Virginia's courts, as well as the courts of other states, have ruled that “[a] party to a contract with another cannot claim shelter by a contractual device, such as an exculpatory or merger provision, against claims of deceit.” Greenleaf Arms Realty Tr. I, LLC v. New Bos. Fund, Inc., 962 N.E.2d 221, 228 (Mass. App. Ct. 2012). See also Restatement (Second) of Contracts, § 196 (1981) (“A term unreasonably exempting a party from the legal consequences of a misrepresentation is unenforceable on grounds of public policy.”). Until today's ruling, that is.

The heart of any fraud or misrepresentation case is a measure of reliance. The essential elements of any fraud case are (1) that the defendant committed (or induced another to commit) a deceitful act or statement, (2) that was material and false, and (3) as a result, the plaintiff was damaged because he justifiably relied on the act or statement.⁶ Here, the majority opinion creates a new doctrine whereby a defendant may eviscerate the reliance element. The majority opinion declares that a party to a contract may incorporate standardized exculpatory language that compels another party to release every conceivable claim of fraud before it has arisen, merely by declaring in writing that the other party did not rely on anything the drafter of the contract said or did. The majority opinion also finds that this is the goal of every “no representation,” “anti-reliance,” “no-reliance,” “disclaimer-of-reliance,” or “non-reliance” clause stuffed into a contract. It concludes that Ameriprise's boilerplate clause – which broadly declares Vallandingham “has not relied upon any representation or action by Ameriprise” – voids any claim that Vallandingham was fraudulently induced into the Beck transaction because it eviscerates any notion Vallandingham relied on Cupach's half-truth misrepresentation.

In addition, the majority opinion is inconsistent with case law from a majority of other jurisdictions that have taken up the issue. Most courts find that “[a] general non-reliance clause, just as a merger clause, does not prevent one from proceeding on tort theories of negligent misrepresentation and fraud.” Slack v. James, 614 S.E.2d 636, 641 (S.C. 2005). Courts tend to reject non-reliance clauses that are “in a preprinted form” and are nothing “but a generalized boilerplate exclusion.” Manufacturers Hanover Tr. Co. v. Yanakas, 7 F.3d 310, 317 (2d Cir. 1993). See also Whelan v. Abell, 48 F.3d 1247, 1258 (D.C. Cir. 1995) (“Such a reading would leave swindlers free to extinguish their victims’ remedies simply by sticking in a bit of boilerplate.”). Instead, to have any effect, a non-reliance clause must have specificity: it must speak directly to the representations made by the parties in forming the contract, such that the clause demonstrates a meeting of the minds regarding what representations are being waived. “The only situation in which the ․ courts have held that a contract provision negatives a claim of fraud is where the provision explicitly states a fact completely antithetical to the claimed misrepresentations.” Clements Auto Co. v. Serv. Bureau Corp., 444 F.2d 169, 179 (8th Cir. 1971).⁷ “[I]n order to be considered sufficiently specific to bar a defense of fraudulent inducement,” a non-reliance clause “must contain explicit disclaimers of the particular representations that form the basis of the fraud-in-the-inducement claim.” Manufacturers Hanover, 7 F.3d at 316.

Some courts permit non-reliance clauses, but only “where the substance of the disclaimer provisions tracks the substance of the alleged misrepresentations.” Grumman Allied Indus., Inc. v. Rohr Indus., Inc., 748 F.2d 729, 735 (2d Cir. 1984) (citing Danann Realty Corp. v. Harris, 157 N.E.2d 597 (N.Y. 1959)). When a party to a contract is claiming some form of fraud or misrepresentation amounting to fraudulent inducement, courts have weighed at least six factors in deciding whether to enforce a non-reliance clause:

(1) Whether the complaining party was advised by counsel;

(2) Whether the terms of the agreement were negotiated and not boilerplate;

(3) Whether the transaction was an arm's-length transaction;

(4) Whether the parties were knowledgeable in business matters;

(5) Whether the language of the clause was clear; and

(6) Whether, if litigation was against a fiduciary, the adversarial relationship of the parties demonstrated an absence of trust between the parties that negated any claim of reasonable reliance.

Although no one factor will be dispositive, these circumstances will be considered by a court determining whether to enforce the plain language of a disclaimer-of-reliance clause in the face of allegations of fraud.

Barr v. Dyke, 49 A.3d 1280, 1289-90 (Me. 2012).⁸ “The presence of counsel speaks to whether or not the playing field is level. Without counsel, a party may not be operating with a full understanding of the transaction.” Id. at 1290. “Whether or not the contractual provisions were negotiated or boilerplate is important to consider because it arguably reflects a clearer intent of the parties.” Id. “To be sure, it is well established that a general, boilerplate disclaimer of a party's representations cannot defeat a claim for fraud.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 785 (2d Cir. 2003)

Applying the Barr v. Dyke factors here, it is obvious that the non-reliance clause drafted by Ameriprise is not enforceable. First and foremost, the non-reliance clause was pure boilerplate. None of the terms of Ameriprise's Consent and Release were negotiated. The Consent and Release is a two-page, pre-printed document with blanks for the buying and selling advisors to fill in their names and the sale fee. The Ameriprise logo is imprinted at the top of the first page. Second, Vallandingham did not have a lawyer in the process, while Ameriprise had teams of lawyers at its corporate headquarters drafting the boilerplate non-reliance clause with no input from Vallandingham. Third, Vallandingham's dealings with Ameriprise were not entirely at arm's length; as a franchisee, Vallandingham was charged by Ameriprise with growing his business, and as Beck's experience shows, an advisor's failure to grow his business imperiled the advisor's franchise. Finally, the non-reliance clause must be tailored to the circumstances underlying the agreement. That is, the substance of the non-reliance provision must track the substance of the alleged misrepresentations. The non-reliance clause in this case does not conflict with any specific representations in the parties’ negotiations, it is simply a blanket, general release of all misconduct. Courts routinely find that a “mere general recitation” is insufficient to bar a defense of fraudulent inducement, because “the touchstone is specificity. Thus, where specificity has been lacking, dismissal of the fraud claim has been ruled inappropriate.” Manufacturers Hanover, 7 F.3d at 316. A non-reliance provision is enforceable to preclude a fraud claim only where the written provision explicitly states a fact that is completely antithetical to the alleged misrepresentation. In other words, if the Consent and Release had distinct and specific representations – for instance, the contract could have said “Beck has a record of failing to comply with company and FINRA regulations, and Vallandingham bears the burden of obtaining that record from Beck, if he so chooses” – then that specificity might foreclose Vallandingham's fraud claim and I could agree with the majority opinion.⁹ On this record, the majority opinion failed to require specificity in the drafting of non-reliance provisions, and it misapplied the law of those provisions to sanction vague, generalized, boilerplate language.¹⁰

3. Conclusion

Nationwide, the rule has long been that “[a] party to a contract who has been guilty of fraud in its inducement cannot absolve himself from the effects of his fraud by any stipulation in the contract, either that no representations have been made, or that any right which might be grounded upon them is waived. Such a stipulation or waiver will be ignored, and parol evidence of misrepresentations will be admitted, for the reason that fraud renders the whole agreement voidable, including the waiver provision.” Ron Greenspan Volkswagen, Inc. v. Ford Motor Land Dev. Corp., 38 Cal. Rptr. 2d 783 n.7 (Cal. Ct. App. 1995). I “continue to believe that parties to contracts, whether experienced in business or not, should deal with each other honestly, and that a party should not be permitted to engage in fraud to induce the contract.” McEvoy Travel Bureau, Inc. v. Norton Co., 563 N.E.2d 188, 194 (Mass. 1990). The majority wrongfully dispenses with this maxim. Accordingly, I respectfully dissent to the majority opinion.

FOOTNOTES

1.   The individual businesses of Ameriprise franchisees, consisting of their set of existing Ameriprise clients, are referred to in the record and briefing as a “business,” a “book of business,” or a “practice.” For simplicity and uniformity, we will refer to each Ameriprise franchisee's individual business as a “practice.”

2.   The circuit court did not find that there were any material differences between the Franchise Agreements Vallandingham and Beck executed with Ameriprise, and neither party argues any such difference on appeal.

3.   As the parties note in their briefs before this Court, Vallandingham completed the purchase of Beck's practice with financial assistance from another Ameriprise advisor, Mark Arnold, who also signed the various documents surrounding the transaction. As Mr. Arnold is neither a party to this appeal nor relevant to its resolution, this Court will not discuss him further.

4.   It is not clear to this Court from the record or the briefing why there was a ten-year delay in the circuit court's entry of a final order.

5.   In arguing its first assignment of error, Ameriprise asserts that it was entitled to summary judgment, that it was entitled to judgment as a matter of law, and that the circuit court's judgment in favor of Vallandingham should be set aside. As Ameriprise only appealed the circuit court's July 30, 2024, final order, and specifically refers to findings in the final order in arguing this assignment of error, we construe this assignment of error as being raised as a challenge to the final order, despite Ameriprise's references to summary judgment. However, since we decide this matter on the legal issue of contract interpretation, we apply the same de novo standard of review applicable on review of a summary judgment order. Moreover, while Ameriprise characterizes the claim Vallandingham prevailed on below as a fraudulent concealment claim, because the circuit court found fraud based on an affirmative misrepresentation, we characterize it as a fraud or fraudulent inducement claim.

6.   The Fourth Circuit's recognition of this distinction is not unique; courts across the country have recognized the difference between merger or integration clauses and non-reliance clauses. See, e.g., Vigortone AG Prods., Inc. v. PM AG Prods., Inc., 316 F.3d 641, 644-45 (7th Cir. 2002). These clauses are also sometimes referred to as “no-reliance clauses” or “anti-reliance clauses.”

7.   We recognize that a party can invalidate a contract releasing claims by demonstrating that it was induced by fraud. See Thomson v. McGinnis, 195 W. Va. 465, 472-73, 465 S.E.2d 922, 929-30 (1995). However, in the instant case, the circuit court found that Ameriprise fraudulently induced Vallandingham to enter the Buy/Sell Agreement, not the Consent and Release. Nor does Vallandingham argue on appeal that the separate Consent and Release was obtained by fraud.

8.   Though he does not cite it, Vallandingham appears to be relying on a canon of interpretation known as the “series-qualifier canon,” which some courts have employed in interpreting statutes. “The series-qualifier canon ․ provides that, ‘[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.’ ” ECB USA, Inc. v. Chubb Ins. Co. of New Jersey, 113 F.4th 1312, 1322 (11th Cir. 2024) (quoting Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts 147). Put differently, “[w]hen several words are followed by a clause [that] [ ] is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.” Id. (quoting Paroline v. United States, 572 U.S. 434, 447 (2014)). The SCAWV declined to apply this canon to a plea agreement that the Court found to be unambiguous. See State v. Whindleton, No. 19-0333, 2020 WL 2735448, at *6 (W. Va. May 26, 2020) (memorandum decision). Moreover, in implicitly advocating this canon, Vallandingham disregards the parallel structure of the items in the series, each of which includes the word “of.” It would require a forced and unnatural reading of the structure of this series to read the final item “or performance by the Transferring Advisor of any obligation under” and read the words “by the Transferring Advisor,” which occur before the word “of,” in that item, to modify each prior item in the series, as Vallandingham suggests.

9.   It has long been a fundamental principle of the law that “[c]ourts are not constituted for the purpose of making advisory decrees or resolving academic disputes.” Syl. Pt. 2, in part, Harshbarger v. Gainer, 184 W. Va. 656, 403 S.E.2d 399 (1991) (quoting Mainella v. Board of Trustees of Policemen's Pension or Relief Fund of City of Fairmont, 126 W.Va. 183, 185-86, 27 S.E.2d 486, 487-88 (1943)). The dissent dispenses with this principle and creates a new one, answering a question that is not before the Court or necessary to the resolution of this case. This new principle of law—deciding based on a hypothetical contract that a non-reliance clause within that contract is unenforceable against a claim by one party to the contract that the other contracting party fraudulently induced the contract—is not before the Court or resolved by our opinion. Instead, it was created to reach the dissent's preferred result.The dissent does not address the basis for our decision, which is that a court will enforce unambiguous contracts, including a contract in which one party agrees to release potential legal claims in exchange for consideration. We applied the plain terms of the Consent and Release, under which Vallandingham agreed to release his claims—known or unknown—against Ameriprise related to the Buy/Sell Agreement with Beck, in exchange for Ameriprise waiving its right of first refusal to buy Beck's practice and consenting to Vallandingham's purchase of same. Although the dissent baselessly claims that we predicated this decision on direct enforcement of the Due Diligence Clause, the primary relevance of that clause to our decision is that it plainly demonstrated that the parties intended the Consent and Release to encompass misrepresentation claims, including fraudulent inducement claims.Instead, the dissent conjures an imaginary contract between Ameriprise and Vallandingham in which Ameriprise directly sold Beck's practice to Vallandingham, and the sale contract included a non-reliance provision mirroring the Due Diligence Clause. The dissent then considers whether that non-reliance provision would bar Vallandingham's claim that Ameriprise fraudulently induced him to enter that contract. To render its advisory answer to this hypothetical, the dissent engages in a review of how courts in other states have answered similar questions, noting that some courts have declined to enforce non-reliance clauses against fraudulent inducement claims, while others have enforced them, provided the clauses are sufficiently specific and not unconscionable. The dissent then predicts that the non-reliance clause in its hypothetical sale contract betweenAmeriprise and Vallandingham would be unenforceable. It is not entirely clear if the dissent believes West Virginia would join those states that do not enforce non-reliance clauses at all, or if such clauses are enforceable but this one would not be. Regardless, the dissent concludes that if a non-reliance clause mirroring the Due Diligence clause had been included in a sale contract between Ameriprise and Vallandingham, it would have been unenforceable against a fraudulent inducement claim. Perhaps the dissent is correct; because it interprets a contract not before the Court and answers an academic question, to say whether it is right or wrong would be to issue an advisory opinion, which this Court is without authority to do. See Cummings v. Paine, 249 W. Va. 568, 574, 899 S.E.2d 646, 652 (Ct. App. 2024) (“This Court, like the SCAWV, is not authorized to resolve such hypothetical case scenarios.”).The dissent's misrepresentations of our decision are legion, so we will not attempt to address them all. However, a few of the most egregious warrant refutation. The dissent claims that we decided to “giv[e] conclusive legal effect to ‘non-reliance’ contract clauses,” that we “declare[d] that a party to a contract may incorporate standardized exculpatory language that compels another party to release every conceivable claim of fraud before it has arisen, merely by declaring in writing that the other party did not rely on anything the drafter of the contract said or did.” Not only is our decision entirely free from these advisory holdings, we explicitly stated that we are not deciding the very issue the dissent accuses us of resolving. We carefully explained that “we need not decide whether a non-reliance clause in a contract would be enforceable as a waiver of a fraudulent inducement claim by one party to that contract against another” and that “the issue before this Court is not whether a clause in a contract can waive a party's claim that it was fraudulently induced to enter that contract.” Apparently, the dissent did not find these disclaimers to be sufficiently specific.

10.   On certiorari review, the Supreme Court of the United States vacated Brown I and remanded to the SCAWV for additional proceedings. See Marmet Health Care Ctr., Inc. v. Brown, 565 U.S. 530 (2012) (per curiam). The SCAWV subsequently entered another opinion, Brown v. Genesis Healthcare Corp., 229 W. Va. 382, 395, 729 S.E.2d 217, 230 (2012) (“Brown II”), in which the Court reaffirmed all but one of the holdings of Brown I. The one holding in Brown I found to be erroneous in Marmet and overruled in Brown II is not relevant to this appeal.

11.   The SCAWV has also noted that “it is likely that the bulk of the contracts signed in this country are contracts of adhesion,” State ex rel. Saylor v. Wilkes, 216 W. Va. 766, 774, 613 S.E.2d 914, 922 (2005), and has repeatedly rejected the conclusion that contracts of adhesion are automatically procedurally unconscionable. See Price v. Morgan Fin. Grp., No. 12-1026, 2013 WL 3184671, at *3 (W. Va. June 24, 2013) (memorandum decision); Pingley v. Perfection Plus Turbo-Dry, LLC, 231 W. Va. 553, 560, 746 S.E.2d 544, 551 (2013) (per curiam); State ex rel. Johnson Controls, Inc. v. Tucker, 229 W. Va. 486, 499, 729 S.E.2d 808, 821 (2012).

12.   While we find that the Consent and Release does not violate public policy, we caution that nothing in this decision should be read to suggest that a broker or financial planner could enforce a release of fraud claims against a purchaser of securities. Sales of securities are, of course, subject to federal statutory and regulatory standards that would inform any analysis of unconscionability and public policy. However, as discussed throughout, Ameriprise was not a party to the Buy/Sell Agreement and did not sell anything to Vallandingham in the Consent and Release. Moreover, as Vallandingham recognizes in his brief, in buying Beck's practice, he was buying the management of clients, not the underlying assets, which continued to be held by the clients.

13.   We note that, while the SCAWV has directed courts to consider public policy concerns as a factor impacting substantive unconscionability, a court can also declare contracts void as against public policy outside of the unconscionability analysis. However, “[t]he judicial power to declare a contract void as contravening sound public policy is a very delicate and undefined power, and should be exercised only in cases free from doubt.” Wellington Power Corp., 217 W. Va. 33, 614 S.E.2d 680, at syl. pt. 4 (quoting Syl. Pt. 1, Barnes v. Koontz, 112 W. Va. 48, 163 S.E. 719 (1932)) (quotations omitted). As we find in our unconscionability analysis that public policy concerns favor enforcement of the Consent and Release, we find no need to separately address whether it should be declared void as against public policy.

1.   The SCAWV has noted “fraud is infinite.” Holt v. King, 54 W. Va. 441, 47 S.E. 362, 365 (1903). Another court likewise said that “[f]raud is infinite in variety. The fertility of man's invention in devising new schemes of fraud is so great, that the courts have always declined to define it ․ All surprise, trick, cunning, dissembling and other unfair way that is used to cheat anyone is considered as fraud.” Kugler v. Koscot Interplanetary, Inc., 293 A.2d 682, 691 (N.J. Super. 1972).

2.   Beck was earning $100,000 a year from his practice, so paying three-quarters that amount seemed like a good deal to Vallandingham. However, after Vallandingham assumed control of Beck's clients, and revealed to many of them their investments were worthless, the clients left. Vallandingham estimated three-fourths of Beck's 201 clients abandoned him and Ameriprise, largely because of Beck's improper financial advice.

3.   Another fact suggesting Ameriprise did not want to inherit Beck's practice is that Ameriprise approved the sale of the practice to Vallandingham within one or two days. However, the record shows it typically took Ameriprise around thirty days to approve the sale of a practice to another advisor.

4.   See, e.g., Bott v. Holman, 850 N.W.2d 800, 807 (Neb. Ct. App. 2014) (“A statement that is true but partial or incomplete may be a misrepresentation, because it is misleading when it purports to tell the whole truth and does not․ When a party makes a partial or fragmentary statement that is materially misleading because of the party's failure to state additional or qualifying facts, the statement is fraudulent.”); Lock v. Schreppler, 426 A.2d 856, 862 (Del. Super. Ct. 1981) (“A representation may be fraudulent even if it is true, if the defendant knows that because of facts not stated, the statement is materially misleading․ Although there is no general duty to speak, nevertheless, if a person undertakes to speak, he then has a duty to make a full and fair disclosure as to the matters about which he assumes to speak.”); Franchey v. Hannes, 207 A.2d 268, 271 (Conn. 1965) (“[A]lthough a vendor may, under the circumstances, have no duty to speak, nevertheless, if he does assume to speak, he must make a full and fair disclosure as to the matters about which he assumes to speak. He must then avoid a deliberate nondisclosure.”); Kannavos v. Annino, 247 N.E.2d 708, 711-12 (Mass. 1969) (“Although there may be no duty imposed upon one party to a transaction to speak for the information of the other ․ if he does speak with reference to a given point of information, voluntarily or at the other's request, he is bound to speak honestly and to divulge all the material facts bearing upon the point that lie within his knowledge. Fragmentary information may be as misleading ․ as active misrepresentation, and half-truths may be as actionable as whole lies ․”); Sanfran Co. v. Rees Blow Pipe Mfg. Co., 335 P.2d 995, 1002 (Cal. Dist. Ct. App. 1959) (A vendor “is not under a duty to make full disclosure ․ However, it is a universally recognized exception that if he undertakes to do so he is bound not only to tell the truth but he is equally obligated not to suppress or conceal facts within his knowledge which materially qualify those stated. If he speaks at all, he must make a complete and fair disclosure.”); Neuman v. Corn Exch. Nat. Bank & Tr. Co., 51 A.2d 759, 764 (Pa. 1947) (“The deliberate nondisclosure of a material fact amounts to culpable misrepresentation no less than does an intentional affirmation of a material falsity, see Restatement, Torts, § 529, comment a.”); Hush v. Reaugh, 23 F. Supp. 646, 652 (E.D. Ill. 1938) (“[M]ere silence is not always proof of fraud but one little word, sufficient to deceive and misinform the other party, may vitally affect the good faith and validity of the transaction.”); Atwood v. Chapman, 68 Me. 38, 40 (1877) (“It may also be true that the concealment alleged, by itself alone, might not be a cause of action. The rule of caveat emptor applies ․ But this rule does not authorize deception in what is said or unsaid. If a person makes representations as to quality or title he is to speak the truth, or if he is placed or places himself in a position where his silence will convey a false impression, his suppression of the truth will be as much a fraud as a false statement. Hence, whether the withholding of a fact is fraudulent must depend upon the accompanying circumstances.”); Restatement (Second) of Contracts § 159, cmt. b (1981) (“A statement may be true with respect to the facts stated, but may fail to include qualifying matter necessary to prevent the implication of an assertion that is false with respect to other facts. For example, a true statement that an event has recently occurred may carry the false implication that the situation has not changed since its occurrence. Such a half-truth may be as misleading as an assertion that is wholly false.”); 37 Am. Jur. 2d Fraud and Deceit § 192 (2025) (“In general, once a person undertakes to speak, that person assumes a duty to tell the whole truth and to make a full and fair disclosure as to the matters about which the person assumes to speak. There is a duty to provide accurate information once one undertakes to speak. Under the law of fraudulent concealment or suppression, a duty to disclose may exist where one voluntarily undertakes to speak but fails to prevent their words from being misleading or conveys only partial information.”); 26 Williston on Contracts § 69:17 (4th ed. 2025) (“When one voluntarily discloses information, he has a duty to disclose the whole truth rather than making a partial disclosure that conveys a false impression. Transactional circumstances other than a confidential or fiduciary relationship can give rise to a duty to disclose, and one such circumstance is the disclosure of certain facts which, absent other disclosures, will mislead.” (cleaned up)).

5.   The two relevant sentences in Ameriprise's petition for appeal argued:Finally, Vallandingham executed two documents precluding him from claiming the transaction was precipitated by fraudulent concealment: (1) the buy/sell agreement in which he affirmed (a) he was “purchasing [Beck's] Business and Assets ‘as is’ ” and (b) he “has not relied upon any representation or action by Ameriprise in deciding to enter into the Succession Agreement” and (2) the Consent and Release in which he “hereby releases all rights or claims, known or unknown, he/she may have now to any relief of any kind from Ameriprise ․ related to or arising from the negotiation of ․ the Transition Agreement.” Although an “as is” clause does not automatically relieve one from a claim of fraudulent concealment, where a party entered [an] “as is” transaction without a special relationship, they may not later claim it.Brief of the Petitioner at 31-32.

6.   Syllabus Point 1 of Lengyel v. Lint, 167 W. Va. 272, 280 S.E.2d 66 (1981) (cleaned up) sets out the elements of a fraud action:The essential elements in an action for fraud are: (1) that the act claimed to be fraudulent was the act of the defendant or induced by him; (2) that it was material and false; that plaintiff relied upon it and was justified under the circumstances in relying upon it; and (3) that he was damaged because he relied upon it.

7.   Some states find no-reliance clauses have no effect. See, e.g., Thrifty Rent-A-Car Sys., Inc. v. Brown Flight Rental One Corp., 24 F.3d 1190, 1195 (10th Cir. 1994) (“Under the law of Oklahoma, one who is fraudulently induced to execute a written contract by the oral misrepresentation of the opposite party may always show that fact in evidence when he bases his defense on fraud in inducing the making of the contract, and he may do this even though the contract sued on provides that all the agreements or representations between the parties are contained therein.” (Cleaned up)); Snyder v. Lovercheck, 992 P.2d 1079, 1086 (Wyo. 1999) (Any fraud vitiates a contract, and enforcing a non-reliance clause “would open[ ] the door to a multitude of frauds and [thwart] the general policy of the law.”).

8.   In Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 60 (Tex. 2008), the court identified five factors to weigh in assessing whether to enforce a non-reliance clause:Courts must always examine the contract itself and the totality of the surrounding circumstances when determining if a waiver-of-reliance provision is binding․ [Factors to consider include:] (1) the terms of the contract were negotiated, rather than boilerplate, and during negotiations the parties specifically discussed the issue which has become the topic of the subsequent dispute; (2) the complaining party was represented by counsel; (3) the parties dealt with each other in an arm's length transaction; (4) the parties were knowledgeable in business matters; and (5) the release language was clear.

9.   The classic example of a non-reliance clause being enforced because of a specific contractual statement is found in the Danann Realty case. The plaintiff bought a building from the defendants. The plaintiff sued claiming the defendants made oral misrepresentations about the rents and expenses of the building. However, the plaintiff's allegations directly conflicted with the parties’ sales contract, which said the defendant “has not made and does not make any representations as to the physical condition, rents, leases, expenses, operation or any other matter or thing affecting or related to the aforesaid premises[.]” Danann Realty Corp. v. Harris, 157 N.E.2d at 598. Cf. Stephens v. Sponholz, 674 N.Y.S.2d 244, 245 (1998) (plaintiff sued defendant for oral fraudulent representations concerning water in the basement of a house; an “as is” clause and a general merger clause in the parties’ sale agreement “are not specific disclaimers and do not preclude a cause of action based on fraud in the inducement of the contract.”).

10.   The majority opinion also takes the position that the non-reliance clause is not unconscionable or one-sided in defendant Ameriprise's favor. It reaches this conclusion by focusing on a right of first refusal in the Consent and Release, effectively finding that plaintiff Vallandingham gave up his right to a fraud action in exchange for Ameriprise giving up its right to buy Beck's practice. However, here, the right of first refusal is completely illusory. First, Ameriprise notes that Cupach asked Vallandingham what he was paying for Beck's practice; when told, Cupach said “he didn't think it was worth what [Vallandingham] was paying.” Ameriprise then repeatedly argues that plaintiff Vallandingham overpaid for Beck's practice at $75,000; if that argument is honestly made, then Ameriprise had no actual interest in exercising its right of first refusal to buy Beck's practice. Second, the right of first refusal was meaningless because Ameriprise did not need to buy Beck's practice and had the opportunity to take Beck's practice for free. Ameriprise terminated Beck's franchise; if he did not sell his practice within 90 days, Ameriprise would assume control and he would receive nothing. If Ameriprise wanted Beck's practice (and all the problems therein), it did not need the right of first refusal because it could have simply refused to allow anyone to buy Beck's practice. Put succinctly, the right of first refusal was a “right” on paper that Ameriprise never intended to exercise, and it never intended to put its money on the line. Amerprise's right of first refusal is meaningless.Nonetheless, what really troubles me is this: Ameriprise never asserted the right of first refusal in its briefs to this Court. True, the right is mentioned in various documents. But Ameriprise never argued the right of first refusal clause was worth spit; it's the majority opinion that makes its own factual finding that the right of first refusal has value, and then it uses that value to find that the Consent and Release was “not one-sided in favor of Ameriprise” and that “this exchange was eminently reasonable,” despite Ameriprise never believing the right of first refusal had value.

CHIEF JUDGE LORENSEN delivered the Opinion of the Court.

JUDGE WHITE dissents and reserves the right to file a separate opinion.