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In Troy Group, we explained that this initial burden of establishing the existence of an arbitration agreement is a light burden.
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No. 20-0007
11-24-2020
STATE of West Virginia EX REL. TROY GROUP, INC., a Delaware Corporation; Baris Vural; Georganne Ickler; and Aimee Orum, Petitioners v. The Honorable Judge David J. SIMS, Judge of the Circuit Court of Ohio County, West Virginia, and Nakita Willis, Respondents
Brian J. Moore, Kelsey Haught Parsons, Dinsmore & Shohl LLP, Charleston, West Virginia, Attorneys for the Petitioners. Robert C. James, Jordan V. Palmer, Flaherty Sensabaugh Bonasso PLLC, Wheeling, West Virginia, Attorney for the Respondent Nakita Willis.
Brian J. Moore, Kelsey Haught Parsons, Dinsmore & Shohl LLP, Charleston, West Virginia, Attorneys for the Petitioners.
Robert C. James, Jordan V. Palmer, Flaherty Sensabaugh Bonasso PLLC, Wheeling, West Virginia, Attorney for the Respondent Nakita Willis.
Jenkins, Justice:
This case was brought as a petition for a writ of prohibition under the original jurisdiction of this Court by Petitioners, TROY Group, Inc., a Delaware Corporation ("TROY"); Baris Vural ("Mr. Vural"); Georganne Ickler ("Ms. Ickler"); and Aimee Orum ("Ms. Orum") (collectively "Petitioners"). In this proceeding, Petitioners seek to have this Court prohibit the Circuit Court of Ohio County from enforcing its order denying their motion to dismiss or, in the alternative, to compel arbitration ("motion" or "motion to dismiss/compel arbitration"). In denying Petitioners’ motion, the circuit court concluded that "significant and troubling questions exist with regard to the authenticity of the agreement produced by [Petitioners]." Consequently, the circuit court found that the arbitration agreement put forth by Petitioners could not be authenticated and denied their motion to dismiss/compel arbitration. After considering the briefs and record submitted, oral arguments presented by the parties, and the relevant law, we conclude that the circuit court erred in finding that the arbitration agreement put forth by Petitioners was not authentic. For this reason, we grant the requested writ.
I.
FACTUAL AND PROCEDURAL HISTORY
Respondent Nakita Willis ("Ms. Willis") was employed with TROY from March 24, 2004, until September 24, 2018. After her employment with TROY ended, Ms. Willis filed a lawsuit in Ohio County alleging wrongful and discriminatory discharge based on race discrimination, gender discrimination, and age discrimination; wrongful and retaliatory constructive discharge; violation of the Wage Payment and Collection Act; and the tort of outrage. Petitioners subsequently filed an answer, which asserted the affirmative defense that this matter was "subject to a valid and binding arbitration agreement." While this matter was pending, TROY produced a "Mutual Agreement to Arbitrate Claims" ("arbitration agreement") with Ms. Willis’ signature on it. Pursuant to the produced arbitration agreement, Ms. Willis agreed not to litigate her employment-related claims in court, but instead agreed to submit such disputes to binding arbitration. It is undisputed that Ms. Willis’ current claims are covered under the language of the arbitration agreement; thus, if the agreement is found to be valid and enforceable, she will be required to arbitrate her claims.
On May 24, 2019, Petitioners filed their motion to dismiss/compel arbitration and their memorandum in support thereof. Petitioners asserted that, at the time Ms. Willis was hired, she executed an arbitration agreement "in which she promised to submit any employment-related claims to binding arbitration[.]" Petitioners further contended that Ms. Willis’ claims were subject to the arbitration agreement because (1) a dispute exists between Petitioners and Ms. Willis; (2) the parties have a written agreement (which was attached to the motion and memorandum supporting the same), and Ms. Willis’ claims fall within the scope of the arbitration agreement; (3) the transactions in question relate to interstate commerce; and (4) Ms. Willis failed to arbitrate the dispute. Petitioners argued that the arbitration agreement is "a valid, enforceable contract supported by consideration" and that the agreement is conscionable.
In response, Ms. Willis opposed the Petitioners’ motion arguing that (1) there was no consideration to give effect to the arbitration agreement; (2) Petitioners had waived their right to arbitrate by appearing in and preliminarily participating in the circuit court case; and (3) Petitioners were estopped from enforcing the arbitration agreement because they invited participation in certain discovery to which they would not have been entitled in an arbitration. Furthermore, in the event that the circuit court rejected these grounds, "[Ms. Willis] ask[ed] the [circuit court], in the alternative, to allow discovery on the issue of arbitration" because there were issues surrounding the creation and execution of the agreement. Ms. Willis attached an affidavit to her response indicating that she did not remember ever seeing or signing the agreement prior to this lawsuit. The circuit court held a hearing on the motion on July 18, 2019. Following the hearing, the circuit court ordered that the parties would have ninety days to conduct discovery on any issues related to the arbitration agreement and the pending motion to dismiss/compel arbitration.
We note that no transcript of the July 18, 2019 hearing has been provided in the appendix in this matter.
During this discovery period, TROY responded to a request by Ms. Willis to produce an original arbitration agreement. Specifically, TROY indicated that "it has already produced an original version" and that there is "no ‘wet ink’ version of the document as TROY [ ] is paperless and documents are maintained in electronic / PDF format." Moreover, the parties engaged in written discovery, which revealed other employees’ arbitration agreements, and Ms. Willis undertook a West Virginia Rule of Civil Procedure 30(b)(7) deposition of TROY corporate representative Ms. Orum. Ms. Orum testified that she was not employed with TROY when Ms. Willis began her employment. However, she stated that it is the typical practice of TROY to present the agreement to all employees in person or via email as part of the new hire paperwork after acceptance of a position and typically within two weeks prior to the employee's start date. Moreover, discovery revealed that, in 2016, TROY began a paperless initiative and all existing personnel files, including Ms. Willis’, were scanned into PDF format for electronic storage. Once Ms. Willis’ file was scanned into the electronic system, the paper copy was shredded by a third-party vendor.
PDF stands for Portable Document Format. Furthermore, according to Merriam-Webster's Dictionary, "pdf" or "PDF" is defined as "a computer file format for the transmission of a multimedia document that is not intended to be edited further and appears unaltered in most computer environments." Merriam–Webster, https://www.merriam-webster.com/dictionary/pdf (last visited Nov. 18, 2020).
After the additional discovery was conducted, Petitioners filed a supplemental memorandum in support of their motion to dismiss or, in the alternative, compel arbitration. Petitioners contended that Ms. Willis failed to challenge whether the claims she made were covered by the arbitration agreement and that she also failed to challenge in any way the conscionability of the agreement. Petitioners further asserted that the arbitration agreement was presumptively valid and that Ms. Willis did not overcome that presumption, they had not waived their right to arbitration, and they were not estopped from seeking arbitration. In turn, Ms. Willis also filed a supplemental response in opposition. In her response, Ms. Willis confusingly asserted that the arbitration agreement is not admissible because it is a duplicate, rather than an original; that she disputed the authenticity of the signature on the document; and that the circumstances surrounding other arbitration agreements executed in the same year of 2004 had "irregularities." Furthermore, she attached a second affidavit that reiterated her prior statements and added that she specifically denied signing the arbitration agreement and that "the apparent signature on it is not authentic and was not put on the document by [her] and/or with [her] knowledge and consent."
Ms. Willis then moved to strike the confidentiality designation of the other non-party employees’ arbitration agreements that had been produced; however, the circuit court denied the motion concluding that Ms. Willis failed to demonstrate why the relief requested should be granted. In its November 18, 2019 order, the circuit court found that "only [Ms. Willis’] arbitration agreement is relevant in this matter." A few days later, on December 5, 2019, based in large part on the other employees’ agreements—despite its previous ruling that the only relevant agreement is Ms. Willis’—and the details in the supplemental briefs, the circuit court denied the motion to dismiss/compel arbitration. Specifically, the circuit court found that "significant and troubling questions exist with regard to the authenticity of the agreement produced by [TROY.]" Petitioners then filed the instant petition for writ of prohibition on January 6, 2020, seeking to prevent enforcement of the circuit court's December 5, 2019 order. We now grant the requested writ.
II.
STANDARD FOR ISSUANCE OF WRIT
TROY comes to this Court seeking a writ of prohibition to prevent the circuit court from enforcing an order that denied its motion to dismiss/compel arbitration. With respect to the extraordinary remedy of a writ of prohibition, this Court has explained that
"[p]rohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for [a petition for appeal] or certiorari." Syllabus Point 1, Crawford v. Taylor , 138 W. Va. 207, 75 S.E.2d 370 (1953).
Syl. pt. 1, State ex rel. Franklin v. Tatterson , 241 W. Va. 241, 821 S.E.2d 330 (2018). "We have, however, observed that ‘[a] petition for a writ of prohibition is an appropriate method to obtain review by this Court of a circuit court's decision to deny or compel arbitration.’ State ex rel. Johnson Controls, Inc. v. Tucker , 229 W. Va. 486, 492, 729 S.E.2d 808, 814 (2012)." State ex rel. Ocwen Loan Servicing, LLC v. Webster , 232 W. Va. 341, 348, 752 S.E.2d 372, 379 (2013).
Furthermore, in Syllabus point 4 of State ex rel. Hoover v. Berger , 199 W. Va. 12, 483 S.E.2d 12 (1996), we set forth the following standard for issuance of a writ of prohibition when it is alleged a lower court has exceeded its legitimate authority:
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
Additionally, " ‘[i]n determining the third factor, the existence of clear error as a matter of law, we will employ a de novo standard of review, as in matters in which purely legal issues are at issue.’ State ex rel. Gessler v. Mazzone, 212 W. Va. 368, 372, 572 S.E.2d 891, 895 (2002)." State ex rel. Nelson v. Frye , 221 W. Va. 391, 395, 655 S.E.2d 137, 141 (2007) (per curiam). Moreover, we note that " ‘[a] trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard.’ Syl. Pt. 4, State v. Rodoussakis , 204 W. Va. 58, 511 S.E.2d 469 (1998)." Syl. pt. 11, State v. Wasanyi , 241 W. Va. 220, 821 S.E.2d 1 (2018). Finally,
in addressing a motion to compel arbitration in the context of a civil action, it is for the court where the action is pending to decide in the first instance as a matter of law whether a valid and enforceable arbitration agreement exists between the parties. See Syllabus Points 1 and 2, Art's Flower Shop, Inc. v. C & P Telephone Co. , 186 W. Va. 613, 413 S.E.2d 670 (1991). Thus we review the circuit court's legal determinations de novo.
State ex rel. Dunlap v. Berger , 211 W. Va. 549, 555-56, 567 S.E.2d 265, 271-72 (2002). With these standards in mind, we now turn to the parties’ respective arguments.
III.
DISCUSSION
The single issue presented in this proceeding in prohibition involves whether the circuit court erred in denying Petitioners’ motion to dismiss/compel arbitration. Specifically, Petitioners assert that the circuit court erred in three ways in this regard: (1) Ms. Willis’ arbitration agreement is the only relevant agreement, not any other employees’ agreements; (2) neither a "wet ink" original nor signature of a TROY representative is necessary for a valid arbitration agreement; and (3) they presented a written arbitration agreement signed by Ms. Willis, and Ms. Willis has not overcome the presumption that the arbitration agreement is valid.
In response, Ms. Willis contends that this case involves only an evidentiary ruling on the authenticity of a document, which is subject to an abuse of discretion standard, and that a simple abuse of discretion is not appropriate for a writ of prohibition. Ms. Willis further asserts that the Petitioners have failed to articulate why the circuit court should have reached a different conclusion. In particular, Ms. Willis argues that (1) the circuit court was free to consider the other employees’ arbitration agreements despite its previous ruling that the only relevant document was Ms. Willis’ arbitration agreement; (2) Petitioners failed to present an original document and could not authenticate the duplicate; (3) there is no presumption of validity of the arbitration agreement, and, even if such presumption exists, the records defeats such a presumption; and (4) Petitioners are unable to authenticate the arbitration agreement. We do not agree.
This Court consistently has held that,
"[w]hen a trial court is required to rule upon a motion to compel arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1 - 307 (2006), the authority of the trial court is limited to determining the threshold issues of (1) whether a valid arbitration agreement exists between the parties; and (2) whether the claims averred by the plaintiff fall within the substantive scope of that arbitration agreement." Syl. Pt. 2, State ex rel. TD Ameritrade, Inc. v. Kaufman , 225 W.Va. 250, 692 S.E.2d 293 (2010).
Syl. pt. 3, Hampden Coal, LLC v. Varney , 240 W. Va. 284, 810 S.E.2d 286 (2018). See also Syl. pt. 4, Golden Eagle Res., II, L.L.C. v. Willow Run Energy, L.L.C. , 242 W. Va. 372, 836 S.E.2d 23 (2019) ("When a trial court is required to rule upon a motion to compel or stay arbitration, the West Virginia Revised Uniform Arbitration Act, West Virginia Code § 55-10-8(b) (2015), limits the authority of the trial court to determining whether a litigant has established: (1) the existence of a valid, enforceable agreement to arbitrate between the parties; and (2) that the parties’ controversy falls within the substantive scope of that agreement to arbitrate."). Accordingly, in this matter, the circuit court had the authority to determine the existence of a valid arbitration agreement.
TROY asserts that it presented a written arbitration agreement containing Ms. Willis’ signature to the circuit court thereby making a prima facie showing of the existence of an agreement to arbitrate and that Ms. Willis then failed to overcome the presumption of its validity. In support of this contention, TROY relies on this Court's recent decision in Employee Resource Group, LLC v. Collins , No. 18-0007, 2019 WL 2338500, at *2 (W. Va. June 3, 2019) (memorandum decision). In Collins , "[t]he determinative issue before the Court [wa]s whether the circuit court erred in refusing to enforce the Arbitration Agreement based upon its determination that the agreement was not signed by respondent." Collins , 2019 WL 2338500, at *5. This Court began its analysis by setting forth the general burden of proof that must be met by a party seeking to enforce an arbitration agreement in Kentucky. Id. Specifically, we stated that,
[w]hile there is no question "that the party seeking to enforce an agreement has the burden of establishing its existence, ... once prima facie evidence of the agreement has been presented, the burden shifts to the party seeking to avoid the agreement." Louisville Peterbilt, Inc. v. Cox , 132 S.W.3d 850, 857 (Ky. 2004). A party "me[ets] the prima facie burden by providing copies of [a] written and signed agreement[ ]to arbitrate." Id.
MHC Kenworth–Knoxville/Nashville v. M & H Trucking, LLC , 392 S.W.3d 903, 906 (Ky. 2013) (emphasis added).
Id. Accordingly, we found that
the record unequivocally contain[ed] a digitally signed copy of the Arbitration Agreement produced by petitioners during discovery before the circuit court. Thus, the burden shifted to [the] respondent. [The r]espondent argued that[,] although the agreement was digitally signed[,] it was not her signature, rather it was a "pre-stamped" signature.
Id. Ultimately, applying the above law to the facts of the case, we found that the petitioners "did produce a signed Arbitration Agreement and met their prima facie burden. It was respondent who failed to produce sufficient evidence to overcome it. The circuit court should have referred the case to arbitration and erred when it failed to [do] so." Id. at *6.
While we recognize that this Court's decision in Collins was decided pursuant to Kentucky law rather than West Virginia law, in other circumstances we have found the party challenging the arbitration provision bears the burden. See, e.g. , State ex rel. Wells v. Matish , 215 W. Va. 686, 692, 600 S.E.2d 583, 589 (2004) (per curiam) (observing that "the burden of proving excessive costs is upon the party challenging the arbitration provision."); Syl. pt. 4, State ex rel. Dunlap v. Berger , 211 W. Va. 549, 567 S.E.2d 265 (2002) (same). Furthermore, this same or a similar general burden of proof has been required of a party seeking to enforce an arbitration agreement in other jurisdictions. See, e.g. , Begonja v. Vornado Realty Tr. , 159 F. Supp. 3d 402, 409 (S.D.N.Y. 2016) ("The party moving to compel arbitration ‘must make a prima facie initial showing that an agreement to arbitrate existed before the burden shifts to the party opposing arbitration to put the making of that agreement "in issue." ’ Hines v. Overstock.com, Inc. , 380 Fed. Appx. 22, 24 (2d Cir. 2010) (summary order) .... Subsequently, the party ‘seeking to avoid arbitration generally bears the burden of showing the agreement to be inapplicable or invalid.’ Harrington v. Atl. Sounding Co., Inc. , 602 F.3d 113, 124 (2d Cir. 2010) (citing Green Tree Fin. Corp.—Alabama v. Randolph , 531 U.S. 79, 91-92, 121 S. Ct. 513, 148 L.Ed.2d 373 (2000) )."); Locklear Auto. Grp., Inc. v. Hubbard , 252 So. 3d 67, 91-92 (Ala. 2017) ("It is true that, ‘once a moving party has satisfied its burden of production by making a prima facie showing that an agreement to arbitrate exists in a contract relating to a transaction substantially affecting interstate commerce,’ the burden shifts to the nonmoving party to show otherwise. It is likewise true that this Court has said that, ‘[i]f th[e nonmoving] party presents no evidence in opposition to a properly supported motion to compel arbitration, then the trial court should grant the motion to compel arbitration.’ ... As we have otherwise recently expressed in another case in which the party opposing arbitration failed to present evidence in the trial court: ‘[U]nless on its face the arbitration provision is not valid or does not apply to the dispute in question, the trial court's decision to deny the motion[ ] to compel arbitration was erroneous.’ " (internal quotations and citations omitted)); Kindred Nursing Centers Ltd. P'ship v. Chrzanowski , 338 Ga.App. 708, 791 S.E.2d 601, 605 (2016) ("Here, Kindred Nursing Centers produced the ADR Agreement, which Jeanne signed. Accordingly, they established a prima facie case with regard to whether Jeanne entered into an enforceable contract. See OCGA § 13–3–1. The burden of proof then shifted to the Chrzanowskis, as the party challenging that agreement, to show that Jeanne lacked the capacity to enter into the agreement.").
Furthermore, the burden of establishing prima facie evidence of an agreement to arbitrate is a light one. "A party ‘me[ets] the prima facie burden by providing copies of [a] written and signed agreement[ ] to arbitrate.’ " MHC Kenworth-Knoxville/Nashville v. M & H Trucking, LLC , 392 S.W.3d 903, 906 (Ky. 2013) (quoting Louisville Peterbilt, Inc. v. Cox , 132 S.W.3d 850, 857 (Ky. 2004) ). "This does not require the movant to show the ‘agreement would be enforceable , merely that one existed.’ " Chang v. United Healthcare , No. 19-CV-3529 (RA), 2020 WL 1140701, at *3 (S.D.N.Y. Mar. 9, 2020) (quoting Begonja v. Vornado Realty Tr. , 159 F. Supp. 3d 402, 409 (S.D.N.Y. 2016) ).
In the instant matter in prohibition, in the circuit court, Petitioners met their initial burden of proving the existence of an agreement to arbitrate by producing, as an attachment to their motion to dismiss/compel arbitration, a written copy of the arbitration agreement containing Ms. Willis’ signature. Ms. Willis then challenged the admissibility and authenticity of the arbitration agreement and the authenticity of her signature under the West Virginia Rules of Evidence.
Pursuant to West Virginia Rule of Evidence 1002, "[a]n original writing, recording, or photograph is required in order to prove its content unless these rules or a state statute provides otherwise." However, West Virginia Rule of Evidence 1003 provides that "[a] duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate." Furthermore, West Virginia Rule of Evidence 1004 provides, in relevant part, that "[a]n original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if: (a) Originals lost or destroyed. —All the originals are lost or destroyed, and not by the proponent acting in bad faith[.]" Moreover, West Virginia Rule of Evidence 901 provides that "(a) In general. —To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Additionally, Rule 901 gives certain examples, but not a complete list of evidence that satisfies the requirement. Id. These examples include, but are not limited to: (1) testimony of a witness with knowledge that an item is what it is claimed to be; (2) nonexpert opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation; and (3) the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances. Id. As such, an original is not always required and there are numerous ways to authenticate a document and/or signature.
Federal Rule of Evidence 1003 is identical to the West Virginia Rule of Evidence 1003. At least one federal court has interpreted this Rule as follows:
The party opposing the introduction of a duplicate has the burden of demonstrating "a genuine issue as to the authenticity of the unintroduced original, or as to the trustworthiness of the duplicate , or as to the fairness of substituting the duplicate for the original." [U.S. v.] Chang An–Lo, 851 F.2d [547] at 557 [(2nd Cir. 1988)] (quoting United States v. Georgalis, 631 F.2d 1199, 1205 (5th Cir. 1980) ); see also Colormaster Printing Ink Co. v. S.S. ASIAFREIGHTER, No. 75 Civ. 5204, et al. (JMC), 1991 WL 60413, at *3 (S.D.N.Y. April 9, 1991) .... [S]ee Colormaster , 1991 WL 60413, at *3 ("[M]ere speculation is not sufficient to raise a showing of a genuine issue as to authenticity or unfairness.").
Koon Chun Hing Kee Soy & Sauce Factory, Ltd. v. Star Mark Mgmt., Inc. , No. 04-CV-2293(JFB)(SMG), 2007 WL 74304, at *4 (E.D.N.Y. Jan. 8, 2007) (emphasis added).
In the matter sub judice , we do not have the "wet ink" original document. In 2016, two years prior to the initiation of the underlying lawsuit, TROY made the company decision to convert all employee personnel files to electronic format in accordance with a paperless policy initiative. As a part of this initiative, TROY started converting the personnel files in December 2016, beginning with the then-current employees’ files, which included Ms. Willis’ personnel file. After Ms. Willis’ personnel file was converted into an electronic PDF file and uploaded to the human resources server, her paper personnel file was sent to a third party to be destroyed. There is no evidence or even allegation that this policy was created or Ms. Willis’ paper personnel file was destroyed in bad faith. There also is no evidence or allegation that this initiative did not apply to every personnel file with TROY. Given these circumstances, the paper original was not required under Rule of Evidence 1004(a), as long as Ms. Willis has not demonstrated "a genuine issue as to the authenticity of the unintroduced original, or as to the trustworthiness of the duplicate , or as to the fairness of substituting the duplicate for the original." Koon Chun Hing Kee Soy & Sauce Factory, Ltd. v. Star Mark Mgmt., Inc. , No. 04-CV-2293(JFB)(SMG), 2007 WL 74304, at *4 (E.D.N.Y. Jan. 8, 2007) (emphasis added).
The evidence that Ms. Willis puts forth in support of her contention that the PDF copy of the arbitration agreement bearing her signature is untrustworthy is minimal and unpersuasive. First, Ms. Willis submitted an initial sworn affidavit that claimed she did not recall ever seeing, being given, signing, or being asked to sign the arbitration agreement. "A mere assertion that one does not recall signing a document does not, by itself, create an issue of fact as to whether a signature on a document is valid—especially in the absence of any evidence the document was fabricated." Gonder v. Dollar Tree Stores, Inc. , 144 F. Supp. 3d 522, 528 (S.D.N.Y. 2015). Then, at the eleventh hour, Ms. Willis submitted a second affidavit in which, contrary to her initial affidavit, she denied that she signed the arbitration agreement. Because Ms. Willis has not given any explanation as to why her recollection suddenly was contrary to her initial sworn affidavit, we decline to consider this self-serving eleventh hour affidavit as evidence that her signature on the arbitration agreement is not authentic. Lastly, the record contains other employee arbitration agreements from 2004 and 2005 that Ms. Willis contends were suspicious and showed "irregularities." Ms. Willis’ focus of the alleged "irregularities" concern whether a TROY representative backdated agreements and that one was signed on a Sunday when TROY was presumably not open for business. During her Rule 30(b)(7) deposition, Ms. Orum testified that she conducted periodic audits of employee personnel files. She could "only assume that [she] signed and dated previous [arbitration agreements] and added [her] title later on[.]" Ms. Willis does not contend that her arbitration agreement displays these similar irregularities—only that they allegedly appear on agreements formed proximate in time to hers and show suspicious conduct. Given that Ms. Willis has not connected those supposed irregularities to her own agreement, we fail to see how they are relevant to the issue of whether Ms. Willis actually signed the arbitration agreement at issue in this case. As the circuit court initially found, Ms. Willis’ arbitration agreement is the only agreement that is relevant to this action. There has been no allegation that the signature that appears on the arbitration agreement does not belong to Ms. Willis. Instead, and without any supporting evidence, Ms. Willis suggests that her signature must have been copied from elsewhere and pasted onto the subject arbitration agreement. There simply is no evidence in the record to support this allegation. Accordingly, Ms. Willis failed to meet her burden.
Ms. Willis additionally provided a sworn affidavit by George Parnieza, a former director of IT for TROY. We also find Mr. Parnieza's affidavit to be unpersuasive on the issue of whether Ms. Willis signed the arbitration agreement at issue in this case. In his affidavit, Mr. Parnieza could not recall seeing or signing an arbitration agreement, and claimed that he saw no such agreement when he examined his file in 2017. However, Mr. Parniez apparently also is involved in an employment dispute with TROY; accordingly, to the extent that arbitration may be an issue in his litigation, this affidavit also appears to be self-serving and insufficient to overcome TROY's prima facie establishment of an arbitration agreement between itself and Ms. Willis. Additionally, whether Mr. Parnieza signed his own agreement to arbitrate is not at issue here.
On the other hand, TROY's Rule 30(b)(7) representative, Ms. Orum provided the following compelling information during her deposition in the underlying litigation which supports the authenticity of the document and the signature. Ms. Orum testified that in producing Ms. Willis’ arbitration agreement, she retrieved it from the human resources server ("the server") in Ms. Willis’ electronic personnel file. Only the director of IT and Ms. Orum have access to the server. Ms. Orum testified that her assistant has viewing access to certain folders and files within the server, but does not have any edit access. Ms. Orum stated that she does have edit access; however, she was not specific as to what exactly she could edit. For example, it is not clear whether Ms. Orum can edit individual documents, such as PDF and Microsoft Word documents, or whether she meant that she has the ability only to add and/or delete server files. When asked about what metadata exists regarding Ms. Willis’ arbitration agreement, Ms. Orum testified that the only metadata that could be produced with regard to this specific arbitration agreement because it was a PDF document was the date the document was scanned into the server and who scanned it. Ms. Willis’ arbitration agreement was scanned into the server on December 21, 2016. Ms. Orum stated that the entire employee file would have been scanned at that same time, both the new hire documents and subsequent personnel information. Ms. Orum explicitly testified that she does not have Adobe Professional or Adobe Illustrator on her system, but rather only Adobe Reader. Accordingly, this particular software does not allow an individual to cut and paste signatures between documents. Ms. Orum also denied having a printer that had cut and paste capabilities. Consequently, through this testimony, Ms. Orum confirmed that the arbitration agreement was scanned into the server in December 2016, two years prior to this litigation, and that she did not have any capability to "cut and paste" Ms. Willis’ signature into the arbitration agreement.
Ms. Orum testified that she is able to ascertain the scan date because, on the server, the scan date is next to the file name in the folder.
Ms. Willis attempts to undercut the impact of Ms. Orum's testimony, arguing that Ms. Orum did not work at TROY when Ms. Willis was hired, and so, neither witnessed Ms. Willis sign her new hire documents, including the mutual agreement to arbitrate, nor signed those documents herself. However, Ms. Orum further testified that in examining Ms. Willis’ mutual agreement to arbitrate, Ms. Orum is able to recognize Ms. Willis’ signature "[b]y comparing it to other documents in her personnel file." She stated that she believes Ms. Willis signed the agreement, herself, because otherwise TROY would not have further "pursued her start[ing] date or her position."
Moreover, Ms. Orum provided testimony regarding the procedure at TROY as to how the mutual agreement to arbitrate was presented to employees. She testified that "[i]t's presented during – or just after an offer of employment and acceptance. It is either handed to the employee or sent via e-mail, depending on location and convenience factors." Moreover, Ms. Orum testified unequivocally that all employees are required to sign the mutual agreement to arbitrate, and, if they do not, TROY "do[es] not pursue employment." She further stated that all employees who began employment with TROY as of 2004 or later have signed the agreement to arbitrate. As such, considering the foregoing evidence and authorities, there is simply no evidence in the record to suggest that it is not Ms. Willis’ signature on the parties’ arbitration agreement and that the arbitration is not authentic as a whole.
Other courts have found similarly when presented with comparable facts and circumstances. See Perez v. Ruby Tuesday, Inc. , No. 6:16-CV-795, 2019 WL 355637, at *4 (N.D.N.Y. Jan. 28, 2019) ("Upon review of the submissions, defendants have carried their burden of demonstrating that the parties agreed to arbitrate pursuant to the Agreement, a copy of which was electronically signed by Perez.... This is because Perez's refusal is made without the support of a shred of evidence that might cast doubt on the authenticity of the various exhibits marshaled by defendants in support of their contrary position. See, e.g. , Gonder v. Dollar Tree Stores, Inc. , 144 F. Supp. 3d 522, 529 (S.D.N.Y. 2015) (rejecting similar refusal to acknowledge electronic signature where ‘[n]othing in the record (other than [plaintiff's] bald assertion to the contrary in his opposition)’ suggested it was invalid). Accordingly, Perez's self-serving refusal to acknowledge the fact of her signature on the document is insufficient to raise a genuine dispute of fact about this allimportant threshold question." (internal quotations and citations omitted)); Hurtt v. Del Frisco's Rest. Grp. , No. CV N18C-05-201 SKR, 2019 WL 2516763, at *3, 6 (Del. Super. Ct. June 18, 2019) ("In lieu of providing direct evidence that her signature was fabricated, Hurtt raised certain suspicions about the signature as it appears on the Arbitration Agreement, and attempted to invalidate the Agreement on those bases.... Other than simply denying that she had signed the Arbitration Agreement, Hurtt has failed to provide any reliable evidence to demonstrate that she was not the signator on that Agreement. Hurtt attempted to raise some suspicions and concerns about the signature and the time of signing, but much of Hurtt's testimony and explanations on those points are inconsistent and do not reconcile with each other. Hence, the alleged suspicions do not constitute ‘competent proof’ that the Agreement was not signed by her.").
Therefore, the circuit court erred in finding that Petitioners were unable to authenticate the arbitration agreement and/or Ms. Willis’ signature because Petitioners met their initial burden of demonstrating that an agreement to arbitrate exists. Petitioners produced testimony that they have had a company-wide policy since 2004 that every employee must sign an agreement to arbitrate, they have an electronic PDF copy of the paper original arbitration agreement, and that the signature on that PDF copy matches Ms. Willis’ signature on other documents. Despite Ms. Willis’ assertions to the contrary, she failed to meet her burden of demonstrating that the arbitration agreement was not authentic and that it was not her signature on that agreement. Consequently, we grant the requested writ of prohibition. IV.
Furthermore, we find that, despite Ms. Willis’ characterization that this matter involves a simple abuse of discretion and is not appropriate for a writ of prohibition, under the specific facts of this case, a writ of prohibition is appropriate. This Court has, on very limited occasions, granted extraordinary relief in matters that involved evidentiary rulings and/or simple abuses of discretion based on the unique circumstances of the particular case. See, e.g. , River Riders, Inc. v. Steptoe , 223 W. Va. 240, 249, 672 S.E.2d 376, 385 (2008) ("This Court has, on limited occasions, considered challenges from evidentiary rulings in unique circumstances where the matter at issue rose to a level of considerable importance and compelling urgency. In reviewing the claims asserted by Petitioners herein, which allege that the circuit court, by virtue of a motion in limine, made jurisdictional rulings that serve to have a significant and lasting negative impact on the question of liability for an important segment of business within this State, we find it appropriate to accept this matter for consideration at this stage in the proceedings." (footnote omitted)). Additionally, we recently have granted extraordinary relief through issuing a writ of prohibition relating to an evidentiary ruling in State ex rel. Wade v. Hummel , 243 W.Va. 408, 415, 844 S.E.2d 443, 450 (2020), finding that "because the State has no right to appeal this issue, it has no other means to obtain relief from the circuit court's ruling." Therefore, Ms. Willis’ assertion that an abuse of discretion is an automatic bar to prohibitory relief is not accurate.
The case sub judice involves whether the circuit court erred in failing to compel arbitration. This Court previously has found "that an order refusing to compel arbitration is effectively unreviewable on appeal. The result of such an order is litigation. The purpose of arbitration is to avoid litigation in favor of a quicker and less costly method of dispute resolution. Thus, a party who is required to wait until the conclusion of litigation to appeal the denial of arbitration has already borne the financial and temporal cost of such litigation and has, therefore, effectively lost, irreparably, the right to arbitration." Credit Acceptance Corp. v. Front , 231 W. Va. 518, 525, 745 S.E.2d 556, 563 (2013) (citations and quotations omitted). While Petitioners effectively had two ways to bring this issue to the attention of this Court, either via writ of prohibition or interlocutory appeal pursuant of the collateral order doctrine, Front , 231 W. Va. at 525, 745 S.E.2d at 563, we find through the necessity of judicial economy and that this issue is not correctable on appeal, under these limited facts, this matter is appropriate for a writ of prohibition.
CONCLUSION
We find that the circuit court committed clear legal error in denying Petitioners’ motion to dismiss or, in the alternative, to compel arbitration by finding the arbitration agreement was not authentic. Accordingly, we grant the requested writ of prohibition.
Writ granted.
JUSTICES WORKMAN and HUTCHISON dissent and reserve the right to file dissenting opinions.
WORKMAN, J., dissenting:
In what has become a disturbingly regular occurrence, the majority has substituted itself as lower court judge and jury, engaging in fact-finding and applying its factual determinations to render a determination the lower court declined—all under the auspices of extraordinary relief. Despite the existence of significant disputed issues of fact regarding whether a valid arbitration agreement was formed, the majority simply resolves the factual dispute by crediting facts it deems relevant and dismissing (if not omitting) those it does not. The majority's opinion is replete with credibility determinations about which explanations and allegations are "minimal and unpersuasive" or "self-serving," and those which it finds "compelling" and "relevant." The majority fails to even dignify the proper procedural mechanism for resolving factual disputes regarding the formation of an arbitration agreement and mischaracterizes the issue as an evidentiary one. Instead, it states summarily that the "circuit court had the authority to determine the existence of a valid arbitration agreement" and proceeds to simply decide the issue itself. However, "[t]o be sure, genuine issues of fact preclude [ ] judgment when determining whether there is an agreement to arbitrate, just as they do when determining the existence of any other contract." Century Indem. Co. v. Certain Underwriters at Lloyd's, London, 584 F.3d 513, 532 (3d Cir. 2009). Because the majority resolved these issues of fact here, rather than remanding for the fact-finder's resolution, I dissent.
See Goodwin v. Bd. of Educ. of Fayette Cty., 242 W. Va. 322, 331, 835 S.E.2d 566, 575 (2019) (Workman, J., dissenting) ("Once again, under the guise of appellate review, the majority resolves issues which are underdeveloped below and in so doing renders this Court an adjudicatory body." (footnote omitted)); State ex rel. Universal Underwriters Ins. Co. v. Wilson , 241 W. Va. 335, 355, 825 S.E.2d 95, 115 (2019) (Workman, J., dissenting) (encouraging "full processing of a ... legal issue by its being fully considered by a lower court, a lower court making a ruling, the parties then briefing and arguing the issue at the appellate level"); State ex rel. Gallagher Bassett Servs., Inc. v. Webster , 242 W. Va. 88, 99, 829 S.E.2d 290, 301 (2019) (Workman, J., concurring in part and dissenting in part) (discouraging premature resolution of "legal issues that hinge on facts" in prohibition).
The plaintiff asserts that the defendants answered the complaint and then delayed filing a motion to compel arbitration. West Virginia's law is not clear on this issue, but there is merit to the argument that the defendants waived their contractual right to arbitration by participating in litigation before asserting their contractual arbitration rights. See Syl. pt. 6, Parsons v. Halliburton Energy Servs., Inc. , 237 W. Va. 138, 785 S.E.2d 844, 848 (2016) ("The right to arbitration, like any other contract right, can be waived."). See also , Thomas J. Lilly, Jr., "Participation in Litigation As A Waiver of the Contractual Right to Arbitrate: Toward A Unified Theory," 92 Neb. L. Rev. 86, 89-90 (2013) ("[T]he goal of fair and efficient dispute resolution in conformity with the parties’ agreement is better served by a rule that the contractual right to compel arbitration of a dispute is waived if it is not asserted by the time the defendant answers the complaint.").
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In this case, petitioner Troy Group ("Troy") produced an arbitration agreement purportedly bearing respondent Nakita Willis’ ("Ms. Willis") signature. Ms. Willis initially averred that she did not recall signing any such agreement and, ultimately, affirmatively swore that she did not sign it. Ms. Willis explained that she became convinced that she did not sign the agreement (rather than simply not recalling) after confirming that she was represented by counsel in an unrelated employment matter at the time the agreement was purportedly signed and would have been wary of such an agreement and would not have likely signed away her right to a jury trial. Nowhere in the majority's opinion is this amplification of Ms. Willis’ recollection mentioned; rather the opinion disingenuously states that Ms. Willis "has not given any explanation as to why her recollection suddenly was contrary" to her initial affidavit.
More importantly, Ms. Willis demonstrated that both her arbitration agreement and those executed in this particular time frame were highly suspect. Ms. Willis’ agreement was among the very first such arbitration agreements required by Troy—a practice allegedly beginning in 2004. Aimee Orum, Troy's Director of Human Resources, testified that the agreements are customarily countersigned by a Troy representative contemporaneous with the employee's signature, an unwritten policy. Indeed, documents from 2006-forward (after Ms. Orum became employed in 2005) are consistent with this practice and bear no other irregularities. This indicia of trustworthiness in the 2006-forward agreements stand in stark contrast to the sketchy details surrounding the scant, four 2004 initial agreements, of which Ms. Willis’ agreement is a part.
Only one arbitration agreement had allegedly ever been signed before Ms. Willis’—one month prior to hers. The employee's signature was dated on a Sunday and the agreement bore no countersignature from a Troy representative, contrary to Troy's custom and policy. Ms. Willis’ agreement, dated a month later in March 2004, likewise bore no countersignature from Troy's representative, also contrary to Troy's custom and policy. The third agreement—allegedly signed only three months later—reveals a clear pattern of back-dating and/or "back-signing" of these first agreements more than a decade later. The agreement contains the signature of the "Director of HR," "Aimee R. Orum," and is dated June 11, 2004. On that date, Aimee Orum 1) did not even work for petitioner; and 2) went by "Aimee Olmstead." Ms. Orum would not work for petitioner until one year later, would not go by "Aimee Olmstead" until seven years later, and would not be the Director of HR until eleven to twelve years later. The final arbitration agreement allegedly signed that year, was not present in the employee's file as of 2017, but was later produced in 2019; that employee also denies outright having signed it.
Testimony of Ms. Orum also revealed that the originals had been destroyed after scanning into Troy's system and that she had lone editing access to the agreements.
Nowhere are these details given any consideration in the majority opinion. Moreover, nowhere in the record does Troy offer testimony to provide any supporting details whatsoever about Ms. Willis’ alleged execution of the agreement. As indicated above, Ms. Orum did not even work for Troy at the time Ms. Willis’ agreement was purportedly signed. Instead, Troy rests its case entirely on the existence of the agreement itself. Obviously then, whether the agreement was actually executed by Ms. Willis is the issue for resolution and is hotly disputed.
The lone reference to the irregularities surrounding these agreements is a passing mention of "backdating" and a footnote describing the final employee's agreement, stating simply that he did not recall signing an agreement and it was not previously located in his file. The majority dismisses this contention as "self-serving" because this employee was engaged in an employment dispute with Troy. Somehow, even this dismissal of countervailing evidence apparently did not alert to the majority that it was engaging in classic credibility determinations dedicated exclusively to the finder of fact.
Rather than acknowledging the credibility and factual determinations necessary to resolve that dispute, the majority opinion labors mightily with presumptions regarding the existence of an agreement (which Ms. Willis does not challenge) and invokes various Rules of Evidence regarding the requirement of originals, duplicates, and general matters of authenticity. However, the issue presented is not an evidentiary one. It is an issue of contract formation, i.e. is the arbitration agreement presented authentic and therefore reflects the formation of an agreement to arbitrate or is it a post-hoc , cobbled-together document which lacks Ms. Willis’ assent to arbitrate? This is the threshold issue presented to the circuit court and is a necessary antecedent to requiring arbitration: whether Ms. Willis assented to arbitration. See New v. GameStop, Inc. , 232 W. Va. 564, 572, 753 S.E.2d 62, 70 (2013) (analyzing contract formation issues to determine "mutual assent or meeting of the minds with respect to arbitration. West Virginia contract law requires mutual assent to form a valid contract."). Shockingly, the majority fails to so much as mention the words "mutual assent" or "formation" anywhere in its opinion.
It is well-established that "[w]hether an arbitration agreement was validly formed ... [is] evaluated under state law principles of contract formation." State ex rel. Richmond Am. Homes of W. Va., Inc. v. Sanders , 228 W. Va. 125, 134, 717 S.E.2d 909, 918 (2011). It is also well-understood, black-letter law that
[f]ormation of a contract is generally a question of fact for the trier of fact to resolve. More specifically, where one party to an action affirms and the other denies the existence of a contract, and the evidence introduced is conflicting, but there is evidence from which a contract may be inferred, the jury should determine the fact of the existence or nonexistence of the contract.
Blum, George, L. et al., 75A Am. Jur. 2d Trial § 655 (2d ed. 2020) (footnotes omitted). Further, "[t]he authenticity of an instrument is a fact question for resolution by a jury, including the question whether a document was altered after it was signed. Controverted questions of fact include whether the document was forged and whether the signatures are genuine." Id. at § 652 (footnotes omitted).
Exclusively focusing on the lower court's finding that there were "significant and troubling questions [ ] with regard to the authenticity of the agreement"—Troy's lone evidence in support of the existence of an agreement to arbitrate—the majority opinion spirals down a rabbit hole of inapposite evidentiary Rules. But, as indicated above, the majority misapprehends the lower court's use of the term "authentic" as suggesting an evidentiary issue. The challenge to the agreement's authenticity goes to whether a contract was formed , i.e. was there mutual assent to arbitrate, not whether the document is of such quality as to warrant introduction into evidence under our Rules. Indeed, the majority does not even intimate of a proceeding in which evidence would be introduced, much less challenged under the Rules of Evidence.
This Court has previously debunked precisely the confusion the majority demonstrates regarding the interplay of the Rules and factual issues regarding authenticity:
" Rule 901(a) is intended to simplify and liberalize the authentication process. Thus, once the party offering the evidence makes a prima facie case, the question of authenticity is for the fact finder [.]" W. Va. R. Evid. 901 simply requires a trial judge to find that a reasonable juror could find that the evidence is what its proponent claims. Once the trial judge makes this determination, the rest is up to the trier of fact.
This analysis does not ignore the purpose behind the authentication requirement; rather the analysis recognizes the function of the trier of fact[.]
State v. Jenkins , 195 W. Va. 620, 624, 466 S.E.2d 471, 475 (1995) (citations omitted) (emphasis added). Simply stated, the issue is not whether the arbitration agreement produced by petitioners was properly admitted as evidence under authenticity and original writing Rules, but rather whether Ms. Willis’ challenge to the agreement's authenticity was sufficient to create an issue of fact regarding whether she assented to arbitration. See Schoendorf v. Toyota of Orlando , No. 6:08-cv-767-Orl-19DAB, 2009 WL 1075991, at *11 (M.D. Fla. Apr. 21, 2009) ("Plaintiff cannot be bound by the Arbitration Agreement in this case because she did not sign it or intend to be bound by it."). "Authenticity" of the agreement in this case, is demonstrative of mutual assent because it is the lone evidence Troy submits in support of the agreement to arbitrate. Given the serious and legitimate issues raised with respect to whether Ms. Willis signed and therefore assented to arbitration, the issue is one for a trier-of-fact to resolve before arbitration may be compelled. The Federal Arbitration Act (also not mentioned in the majority opinion) makes this clear:
If the making of the arbitration agreement ... be in issue, the court shall proceed summarily to the trial thereof.... Where such an issue is raised, the party alleged to be in default may ... demand a jury trial of such issue , and upon such demand the court shall make an order referring the issue or issues to a jury in the manner provided by the Federal Rules of Civil Procedure, or may specially call a jury for that purpose. If the jury find that no agreement in writing for arbitration was made or that there is no default in proceeding thereunder, the proceeding shall be dismissed. If the jury find that an agreement for arbitration was made in writing and that there is a default in proceeding thereunder, the court shall make an order summarily directing the parties to proceed with the arbitration in accordance with the terms thereof.
9 U.S.C.A. § 4 (1954). As the 8th Circuit further explained:
Indeed, the FAA provides that "[i]f the making of the arbitration agreement ... be in issue, the court shall proceed summarily to the trial thereof." "If no jury trial be demanded by the party alleged to be in default ... the court shall hear and determine such issue." At times, a district court may "decide the arbitration question as a matter of law through motions practice and viewing the facts in the light most favorable to the party opposing arbitration." To this end, "the [FAA's] summary trial can look a lot like summary judgment." However, if the motions record reveals a material issue of fact , the FAA maintains that the court move summarily to trial. And, when that trial is not demanded by the party opposing arbitration, "the court shall hear and determine such issue."
Nebraska Mach. Co. v. Cargotec Sols., LLC , 762 F.3d 737, 743 (8th Cir. 2014) (citations omitted) (emphasis added). Nowhere does the majority opinion examine the true error of the lower court and, in fact, duplicates it—the failure to send the formation issue to a jury or, absent a request for a jury, to engage the lower court as a finder of fact to resolve the issue.
The record does not reflect whether Ms. Willis requested a jury trial of this issue. Absent that, a fair reading of the lower court's order would suggest that it acted as the trier of fact and found against Troy, resulting in an affirm under a deferential standard of review.
When a party challenges the formation or existence of a valid agreement to arbitrate,
[u]nder the FAA, "the party seeking a jury trial must make an unequivocal denial that an arbitration agreement exists—and must also ... provide sufficient evidence in support of its claims such that a reasonable jury could return a favorable verdict under applicable law."
Thus, "to obtain a jury trial, the parties must show genuine issues of material fact regarding the existence of an agreement to arbitrate."
Galloway v. Santander Consumer USA, Inc. , 819 F.3d 79, 85 (4th Cir. 2016) (footnote and citations omitted). See also Boyles v. Langmore Capital, LLC , No. 1:20-CV-545, 2020 WL 4719282, at *3 (M.D.N.C. Aug. 13, 2020) (noting that "defendants have presented evidence that Mr. Boyles electronically signed agreements to arbitrate. Mr. Boyles has presented evidence that he never saw the agreements and did not sign them. Thus, the record creates [ ] disputed questions of material fact .... To resolve these disputed questions of material fact, a trial is required under Section 4."); Hilton v. Fluent, LLC , 297 F. Supp. 3d 1337, 1341 (S.D. Fla. 2018) ("[O]nce an agreement to arbitrate is put ‘in issue,’ the Federal Arbitration Act provides that the court ‘shall proceed summarily to the trial thereof’ and that ‘[i]f no jury trial be demanded by the party alleged to be in default ... the court shall hear and determine such issue.’ 9 U.S.C. § 4."); SSC Selma Operating Co., LLC v. Gordon , 56 So.3d 598, 603 (Ala. 2010) ("Mrs. Gordon filed a response to the defendants' motions to compel arbitration and attached to the response her affidavit, in which she denied that she had signed an arbitration agreement with SSC.... Mrs. Gordon's affidavit constitutes sufficient evidence that the arbitration agreement did not exist. Therefore, a genuine issue of material fact has been raised concerning the existence of the arbitration agreement.").
Finally, the majority cites several highly distinguishable cases in support of its apparent position that production of an arbitration agreement, even in the face of a denial of signature and demonstrable irregularities, is sufficient to compel arbitration. First, it cites to a recent memorandum decision where this Court compelled arbitration in the face of a signature denial. The majority opinion fails to note that the Court found that, despite plaintiff's denial, "the only way the digital signature appears on the document was for respondent to have entered her password that she created into the portal that was emailed to her—a password that she testified she would not have shared with anyone else." Employee Res. Grp., LLC v. Collins , No. 18-0007, 2019 WL 2338500, at *5 (W. Va. June 3, 2019) (memorandum decision). The same is evident from the extra-jurisdictional cases cited. In each, the employee presented nothing more than a blanket denial of signature and failed to produce any additional evidence calling the veracity of the agreements into question; in most, compelling evidence of the impossibility of forging or imposing the employee's signature was presented by the employer.
How these cases remotely resemble the instant case is a mystery. Ms. Willis has produced admitted evidence of back-dating and back-signing agreements by the sole person with editing access to these electronically-stored agreements. She has produced evidence that her agreement was one of the first and has no corroborative countersignature like virtually all of the subsequent agreements, in violation of company custom and practice. Finally, she has presented disputed evidence as to why she would not have signed such an agreement: her involvement in unrelated employment litigation and being represented by counsel at the time the agreement was allegedly signed.
The majority has conflated the formation or mutual assent issue presented in this case with an evidentiary issue and failed to even dignify the existence of and procedure for handling the factual dispute underlying the case. As a result, it has issued a signed opinion which suggests that an employer with sole possession of an arbitration agreement is virtually immune from any denial that the agreement was signed by the employee. Its credibility and factual determinations are grossly improper and cast a long shadow over our body of caselaw mandating that arbitration agreements be afforded the same consideration as any other contract. Accordingly, I respectfully dissent.
Hutchison, Justice, dissenting:
(Filed November 24, 2020)
I dissent because the majority opinion has – unintentionally, I think – rewritten the West Virginia Rules of Evidence and created a biased, pro-plaintiff process for the introduction of evidence. The majority opinion essentially says that a person offering evidence does not have to show the evidence is authentic; the burden is, instead, on the resisting party to prove the evidence is not authentic.
Rule 104(a) of the Rules of Evidence gives a trial court the discretion to assess whether evidence is admissible. Rule 104(a) provides:
The court must decide any preliminary question about whether ... evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
That means the trial court can consider all of the surrounding circumstances, unbound by the Rules of Evidence, to weigh whether a particular piece of evidence is admissible because it is relevant, competent, and authentic.
This case centers on that last requirement, that evidence be "authentic." Rule 901(a) provides that, for evidence to be authenticated, "the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." The rule is simple and clear: if someone wants to introduce a piece of evidence for consideration, they first have to show the judge proof that the evidence is genuine.
Let me begin by relating the factual basis for the circuit court's ruling. The majority opinion sidesteps many of the facts in the record or, with a wave of judicial prerogative, declares those facts to be "self-serving" or "unpersuasive."
A. Factual Background
This case is about a document that the defendant-petitioners purport to be a written arbitration contract. The plaintiff, Nakita Willis, claims she was discriminated against by her former employer, defendant TROY Group and various defendant employees of TROY. Before filing suit, the plaintiff's lawyers explored a settlement with the defendants and sent them a copy of their complaint. The defendants never mentioned any arbitration agreement, and even agreed that their attorney would accept service of a complaint, if one was filed.
The plaintiff then filed suit, and the defendants answered the complaint and sought to compel the plaintiff to participate in arbitration.1 Attached to the motion was a document that the defendants claim is a copy of a 2004 arbitration contract signed by the plaintiff. The plaintiff challenged the authenticity of the arbitration contract and produced an affidavit saying she did not remember ever seeing or signing the document. The defendants claim she did sign the agreement because all employees signed similar agreements as a condition of their employment.
The circuit court heard the parties’ arguments and then gave the parties ninety days to conduct discovery on the authenticity issue. In light of the defendants’ claim, plaintiffs asked for copies of the arbitration agreements signed by all employees. The defendants produced these documents. The agreements signed by other employees in 2006 and 2007 appeared to be similar in content and were signed by an actual human resource employee who worked for TROY Group in 2006 and 2007. In other words, there appears to have been a consistent signing process in effect in 2006 and 2007. The agreements before 2006, however, did not appear to follow any process.
The plaintiff discovered that the defendant did not use arbitration agreements until February 2004; the employee hired immediately before the plaintiff was allegedly the first to sign such an agreement. The defendants produced only four agreements signed in 2004. Importantly, all four of the 2004 agreements are incomplete, contain irregularities or "red flags," and the agreements supposedly signed in 2004 (and 2005) are wildly different from the agreements executed in 2006 and 2007.
To begin, the first arbitration agreement produced by the defendants was supposedly signed by an employee in February 2004. Oddly, however, the agreement was signed and dated on a Sunday, when TROY was not expected to be open. Furthermore, the agreement does not have a countersignature by a TROY employee.
The second arbitration agreement was purportedly signed by the plaintiff in March 2004. The plaintiff claimed she never signed the document and that the signature on the document is not hers. The document was, likewise, not signed by a representative for TROY.
The third arbitration agreement produced was allegedly signed by an employee in June 2004. Oddly, the agreement was also signed on "6/11/04" by a representative of TROY, "Aimee R. Orum," the "Director of HR." However, in a later deposition, Ms. Orum confirmed she was not the "Director of HR" in June 2004. In fact, she admitted she did not start working for TROY until May 2005; her name was Aimee Olmstead until she married seven years later in 2011; and her title did not become "Director of HR" until 2015 or 2016.
The fourth arbitration agreement was purportedly signed in December 2004. However, that employee denies he ever signed an arbitration agreement. Moreover, the fourth employee asked for a copy of his employment file in 2018 and there was no arbitration agreement in the file. Remarkably, however, by Summer of 2019, the defendants were able to produce the purported agreement to the plaintiff.
The defendants also produced arbitration agreements from 2005. None of those agreements are signed by a TROY representative save one, which Ms. Orum signed and then dated "2005" after she became director of human resources in 2015 or 2016.
Due to the suspect inconsistencies in the arbitration agreements produced by the defendants, the plaintiff sought to take a deposition of TROY's Rule 30(b)(7) designee. Using Rule 30(b)(7), a party may ask a corporation or other entity to designate a person who can testify on behalf of the entity "to matters known or reasonably available to the organization." The plaintiffs’ deposition request asked for a TROY Group witness with "knowledge of the circumstances around the purported signature of Nakita Willis being affixed to the Mutual Agreement to Arbitrate" and "knowledge of the policies and procedures of TROY Group, Inc. with regards to having employees sign a Mutual Agreement to Arbitrate."
TROY designated Ms. Orum as its Rule 30(b)(7) designee. As the majority opinion relates, Ms. Orum testified that, today , it is the company's policy to present the arbitration agreement to employees in their new hire paperwork, and employees are required to sign the agreement as a condition of their employment. However, this policy is unwritten. When she was asked about TROY's policy regarding arbitration agreements in 2004 when the plaintiff allegedly signed the agreement, Ms. Orum said she did not work for the company until 2005. Ms. Orum further testified that to prepare for her deposition, she spoke only with the chairman and president of the company and only to "advis[e] them that I was to be here today." She never conducted any research regarding the circumstances or policies in effect in 2004. Ms. Orum said she could not say when, where, if or how the agreement was presented to the plaintiff; what might have been said to the plaintiff; or who, if anyone, was sure the plaintiff signed the document. She could only say that the signature seemed to match the plaintiff's signature on other documents in her digital personnel file.
As noted earlier, the plaintiff signed an affidavit in which she maintained that her signature on the purported arbitration agreement was not authentic and that she did not sign it. While the circuit court permitted the parties to conduct discovery on the authentication issue, the defendants did not take the plaintiff's deposition or offer anything substantive to challenge the plaintiff's claim she did not sign the agreement. The plaintiff followed this with a second affidavit elaborating why she was confident she did not sign the agreement. The plaintiff stated that, in March 2004 (when she supposedly signed the agreement), she was represented by a lawyer in an unrelated employment dispute and had, therefore, a heightened sensitivity to any employment documents that might alter her rights. She recalled that she would have been highly alarmed at the prospect of not having access to court, would have raised the issue with her lawyer, and might have even refused TROY's job offer.
Based on all of the evidence developed by the parties, the circuit court ruled that
significant and troubling questions exist with regard to the authenticity of the agreement produced by the Defendants. The circumstances around the signing (or lack thereof) of the document raises a clear factual dispute. Defendants have dismissed Plaintiff's arguments in this regard and have failed to provide the Court with a clear and cogent explanation for the discrepancies raised. It is clear that Defendants cannot authenticate the agreement, particularly given the confusing testimony of Ms. Orum and questions over her access to the document after it was purportedly signed.
The circuit court therefore concluded the defendants failed to establish the existence of an actual agreement between the parties. Based on this ruling, the defendants petitioned this Court for a writ of prohibition, which the majority opinion has granted. I am flummoxed by the majority opinion.
B. Defendants Cannot Authenticate the Agreement
First, the defendants’ petition to this Court is deceptive, and the majority opinion plays along with that deception. The defendants claim they – like most modern companies – scanned all copies of their employment records into a computer and then shredded the paper originals. Hence, in a gigantic red herring argument, the defendants complain the circuit judge discriminated against them and every other modern corporation because, effectively, the judge ruled companies cannot rely on digital copies but must produce the original "wet ink" version of an agreement. The majority opinion felt compelled to extemporize on this nonsensical issue, quoting Rules 1002, 1003, and 1004 for the proposition that computerized copies can be just as probative and admissible as original versions.
Problematically, the circuit court did not base its ruling on a "wet ink" versus computerized records analysis. The whole "wet ink" argument is a sparkly bauble that drew the majority opinion's attention away from the real argument, which is that the defendants failed to produce evidence of authenticity sufficient for the circuit court to find that the plaintiff-signed arbitration agreement is what the defendants claim it is. The reason the circuit court considered the computerized documents to be inauthentic is, in part, because the handwritten signature of the "Director of HR" appeared on at least two digitized documents executed over a decade before the person became "Director of HR."
Allow me to explain how the majority opinion should have addressed the parties’ authenticity arguments, and then I will explain how the majority opinion turned those rules upside down.
As I said earlier, Rule 104(a) requires a judge to make a preliminary ruling on the admissibility of evidence. Under Rule 104(a), the judge can weigh any form of proof, admissible or not, to determine if a piece of evidence is admissible. " Rule 104(a) requires the proponent of the testimony to show by a preponderance that the evidence is admissible." Gentry v. Mangum , 195 W. Va. 512, 522 n.8, 466 S.E.2d 171, 181 n.8 (1995). Hence, when the defendants stapled a copy of the arbitration agreement onto their motion to compel, the circuit judge had sole discretion to determine if the document was admissible; if it was not admissible, then it had no probative effect. The plaintiff, as we know, said the document was inadmissible because it was not authentic. Rule 901(a) provides the conceptual framework for authenticating nontestimonial evidence such as documents and objects; an object or document can be authenticated if the judge finds there is evidence showing it is what it purports to be.
When a defendant offers a contract as evidence, but the plaintiff responds they did not sign the contract, the burden falls upon the defendant – as the proponent – to prove by a preponderance of the evidence that the contract, as well as the signature on the contract, is authentic.
The case law abounds with instances where defendants claimed a plaintiff signed an arbitration contract but courts refused to enforce the contract because the defendant could not prove it was authentic. One such example is Ruiz v. Moss Brothers Auto Group, 232 Cal.App.4th 836, 181 Cal. Rptr. 3d 781, 787 (2014), a case where an employer tried to compel an employee to arbitrate his wage dispute. The appellate court noted that "general principles of contract law determine whether the parties have entered a binding agreement to arbitrate, and the party seeking arbitration bears the burden of proving the existence of an arbitration agreement." Id. The court also said that "any writing must be authenticated before the writing, or secondary evidence of its content, may be received in evidence." Id.
The trial court in Ruiz refused to enforce the arbitration agreement after finding the employer failed to show the employee's digital signature on the agreement was authentic. The appellate court affirmed that determination:
After Ruiz [the employee] averred he did not recall electronically signing the 2011 agreement, [the employer] explained in her reply declaration that the 2011 agreement was part of an employee acknowledgment form that "is" presented to all [company] employees as part of a series of changes to the company's employee handbook, and each employee is required to log into the company's HR system, using his or her "unique login ID and password," to review and sign the employee acknowledgment form. Again, however, [the employer] did not explain how, or upon what basis, she inferred that the electronic signature on the 2011 agreement was "the act of" Ruiz. This left a critical gap in the evidence supporting the petition....
In the face of Ruiz's failure to recall electronically signing the 2011 agreement, the fact the 2011 agreement had an electronic signature on it in the name of Ruiz, and a date and time stamp for the signature, was insufficient to support a finding that the electronic signature was, in fact, "the act of" Ruiz. For the same reason, the evidence was insufficient to support a finding that the electronic signature was what Moss Bros. claimed it was: the electronic signature of Ruiz. This was not a difficult evidentiary burden to meet, but it was not met here.
Likewise, in Fabian v. Renovate America, Inc., 42 Cal.App.5th 1062, 255 Cal. Rptr. 3d 695, 702 (2019), a company tried to enforce an arbitration clause against a customer in a solar-panel-installation contract. The court found the agreement unenforceable because the company failed to show "who presented [the plaintiff] with a physical or electronic copy of the Contract, the specific location where the Contract was signed, the time when the Contract was signed, or how [the corporate defendant's witness] ascertained that [the plaintiff] was present when the Contract was signed." Id. The company also could not articulate the process by which it obtained an electronic signature from the plaintiff. Because the company could not prove the authenticity of the plaintiff's signature, it could not prove it had an enforceable arbitration agreement.
Like this Court, the Ohio courts (1) have expressed a "strong presumption ... in favor of the validity of a written arbitration clause;" and (2) have said that a party "cannot be ordered to submit a claim to arbitration if that party has not agreed to arbitrate the dispute in writing." ACRS, Inc. v. Blue Cross & Blue Shield of Minnesota, 131 Ohio App.3d 450, 722 N.E.2d 1040, 1043-44 (1998). Despite having these rules, Ohio courts have refused to enforce arbitration agreements that have not been proven to be authentic. One Ohio court refused to enforce an arbitration contract because the defendants failed to "produce authenticated copies of the entire contract upon which their motion to compel arbitration was based in order to provide the trial court with sufficient evidence of the existence of a written agreement to arbitrate the disputed claims." Id. at 1045. Another court refused to enforce a company's written arbitration agreement because the company failed to show that the document attached to the motion to compel "was in fact the exact contract agreed upon by the parties." McGuinea v. Ganley Nissan, Inc. , 2005-Ohio-6239, ¶ 22, 2005 WL 3120217.
"The Texas Supreme Court, as well as this Court, has repeatedly held that the party seeking arbitration has the initial burden to establish the existence of a valid arbitration agreement." Wright v. Hernandez , 469 S.W.3d 744, 751 (Tex. App. 2015).
Once the validity of an arbitration agreement has been established, there is a presumption in favor of arbitration, and the burden then shifts to the party opposing the agreement to raise an affirmative defense to the enforcement of the agreement. However, while there is a strong presumption in favor of arbitration, it arises only after a valid arbitration agreement is proven to exist.
Id. (Cleaned up). The Texas court went on to note that "[a]uthenticity is a prerequisite to admissibility." Id. Finally, that court made this point:
Simply attaching a document to a pleading neither makes the document admissible as
evidence, dispenses with proper foundational evidentiary requirements, or relieves a litigant of complying with other admissibility requirements. A document may only be considered authentic if a sponsoring witness vouches for its authenticity or if the document meets the requirements of self-authentication[.]
Id. (Cleaned up). The Texas court found that the defendant "failed to properly authenticate the arbitration agreement when it first filed its motion to compel." Id. However, because the plaintiff never "challenged or contested the genuineness of her signature on the document," and the defendant offered affidavits that "verified that the agreement was an exact duplicate of the original document," the court reversed course and concluded the arbitration agreement was authentic and enforceable. Compare United Rentals, Inc. v. Smith , 445 S.W.3d 808, 814 (Tex. App. 2014) (because "no witness could conclusively establish that the Employment Agreement in Exhibit A was a true and correct authentic copy," arbitration clause in agreement was not enforceable).
The guidelines I take away from these cases are simple. General principles of contract law determine whether the parties have entered into a binding agreement to arbitrate, and the party seeking arbitration has the initial burden of establishing the existence of a valid arbitration agreement. Only after a valid arbitration agreement is established does a presumption in favor of arbitration arise, and only then does the burden shift to the opposing party opposing to raise an affirmative defense to the agreement. A defendant seeking to enforce an arbitration agreement may attach a copy to the motion to dismiss or to compel, but a trial court may consider the agreement only if "no party questions the authenticity of the document." Syl. pt. 6, Mountaineer Fire & Rescue Equip. v. City National Bank , ––– W.Va. ––––, ––– S.E.2d –––– (No. 18-0984, November 20, 2020). Authenticity is a prerequisite to admissibility and consideration. If the plaintiff challenges the authenticity of the document, then the defendant has the burden of proving by a preponderance of the evidence that the document is what the defendant claims it is: a written arbitration contract to which both parties have clearly expressed their assent. See generally Menaka N. Fernando, Jennifer S. Schwartz, "Tackling Forced Arbitration," Trial , 31-34 (September 2018).
In this case, the plaintiff disputed the authenticity of the defendants’ arbitration agreement. The defendant offered proof of its procedures today and how recently-hired employees are required to sign the agreement as a condition of employment. However, the Rule 30(b)(7) witness offered by the defendants had no idea of the circumstances surrounding the execution of the agreement with the plaintiff, who was (according to the defendants’ evidence) the second person to sign such an agreement. While the defendants offered no evidence as to what the process was in 2004, the plaintiffs discovered that the process was quite irregular, with questionable "Director of HR" signatures appearing on documents over a decade later, or documents appearing in files in 2019 that were not produced in 2018. Further, the plaintiff definitely said it was not her signature on the document and that the signature might have been digitally forged. The defendants’ only answer is that it looked like plaintiff's signature.
On this record, the circuit court was clearly within its discretion to find that the defendants had failed to produce a preponderance of evidence showing that the document was, in fact, what they claimed it was: a written arbitration agreement signed by the plaintiff.
C. Problems with the Majority Opinion
The majority opinion holds that because the defendants attached a copy of a digital document to their motion, they made "a prima facie showing of the existence of an agreement to arbitrate and that Ms. Willis then failed to overcome the presumption of its validity." The majority opinion says that merely producing a document is prima facie evidence there is a contract, and that the "burden of establishing prima facie evidence of an agreement ... is a light one." Thereafter, according to the majority opinion, the burden shifts to the party seeking to avoid the contract. This holding ignores the Rules of Evidence and turns the burden of proof in this case upside down. By the majority opinion's reasoning, a party can attach any document to a pleading or motion and, if it looks like a contract, then the trial court must declare that the document is prima facie evidence of a contract. The majority opinion further places the burden of proof on the opposing party to introduce evidence showing the document is not a binding contract. As I said, I anticipate plaintiffs will have a field day with this holding because, effectively, it unmoors plaintiffs from any real burden of proof.
The majority opinion also violates a basic tenet of appellate review: that this Court does not make findings of fact. That burden lies with the trial courts, and this Court has often said that it will set those findings aside only if they are clearly erroneous:
A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. However, a reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court's account of the evidence is plausible in light of the record viewed in its entirety.
Syl. pt. 1, in part, In Interest of Tiffany Marie S. , 196 W. Va. 223, 470 S.E.2d 177 (1996). Furthermore, "[t]he action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion." Syl. pt. 10, State v. Huffman , 141 W. Va. 55, 87 S.E.2d 541 (1955).
The majority opinion concludes that the evidence of "irregularities" surrounding the process of forming the plaintiff's so-called contract is irrelevant. Despite the fact that these hinky deviations "appear on documents formed proximate in time to hers and show suspicious conduct," the majority opinion fails to see their relevance because they did not occur in the plaintiff's document. The majority opinion says this despite the obvious admissibility of circumstantial evidence, and the overarching authority of a trial judge to consider any evidence, admissible or not, when ruling on admissibility under Rule 104(a).
Furthermore, the majority opinion rejects the plaintiff's claims that she did not sign the arbitration agreement as "self-serving," without recognizing the defendants’ evidence is just as "self-serving." When the plaintiff suggests that the defendants may have copied her digital signature from elsewhere and pasted it into the agreement, the majority opinion sees "no evidence in the record to support this allegation." This conclusion seems to run contrary to the evidence showing that despite TROY Group having digitized all of its employment records, Ms. Orum's physical signature as "Director of HR" appears on a 2004 agreement executed a year before Ms. Orum was hired, seven years before she changed her last name to Orum, and over a decade before she was "Director of HR."
Additionally, the majority opinion finds that the defendants provided "compelling information" that the signature on the agreement is the plaintiff's (despite the two affidavits where the plaintiff says it is not her signature), then declares "there is simply no evidence in the record to suggest that it is not Ms. Willis’ signature on the parties’ arbitration agreement[.]" And then, with no analysis whatsoever, the majority opinion announces that the circuit court erred in its assessment of the evidence, and that the plaintiff "failed to meet her burden of demonstrating that the arbitration agreement was not authentic and that it was not her signature on that agreement."
Stated simply, the majority opinion chose one set of facts over the other to overturn the circuit court's findings apparently to justify reversing the circuit court. Despite our long-standing law from Tiffany Marie S. that "a reviewing court may not overturn a finding simply because it would have decided the case differently," the majority opinion has done just that.
D. Conclusion
It is difficult how to measure just how much the majority opinion's holding deviates from the norm established by the Rules of Evidence. The majority opinion ignores the discretion of trial courts to determine the admissibility of evidence, and it ignores the duty of the party offering evidence to establish it as authentic. The majority opinion eviscerates a proponent's duty to show evidence is admissible, and it puts the burden on the defending party to show evidence is not admissible. It then rejects any facts in the record favorable to the defending party to reach the conclusion that, despite one party saying they never agreed to the terms, a contract exists. The opinion is, as we say back home, "a hot mess."
I therefore respectfully dissent.