SEP Troy Grp. v. Sims

SER Troy Group, et al. v. Sims

No. 20-0007

Supreme Court of Appeals of West Virginia

November 20, 2020

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.¹ 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 theexistence 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.

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 allegedlysigned 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.²

Nowhere are these details given any consideration in the majority opinion.³ 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.

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 anissue 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. Controvertedquestions 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...