Citibank, N.A. v. Perry

Decision Date10 November 2016
Docket NumberNo. 15–1121,15–1121
Citation797 S.E.2d 803
CourtWest Virginia Supreme Court
Parties CITIBANK, N.A., Successor to Citibank (South Dakota), N.A., Plaintiff Below, Petitioner, v. Robert S. PERRY, Defendant Below, Respondent.

Jeffrey M. Wakefield, Bryan N. Price, Keith R. Hoover, Flaherty Sensabaugh Bonasso PLLC, Charleston, West Virginia, Attorneys for the Petitioner.

Troy N. Giatras, Matthew W. Stonestreet, The Giatras Law Firm, PLLC, Charleston, West Virginia, Attorney for the Respondent.

Davis, Justice:

In this appeal, plaintiff/counterclaim defendant below, Citibank, N.A. ("Citibank"), petitioner herein, challenges an order entered by the Circuit Court of Boone County that denied Citibank's motion to compel arbitration and stay the action. The circuit court based its denial upon the finding that Citibank had waived its right to arbitration by initiating its claim in circuit court nearly five years prior to seeking arbitration of the matter, and by taking certain actions to further the case. Citibank herein claims it did not waive its right to arbitration pursuant to provisions contained in the arbitration agreement that allowed either party to seek arbitration after filing a lawsuit in court so long as the trial had not begun, and no final judgment had been entered. We have reviewed the parties' briefs, heard their oral arguments, and considered the relevant law. Based upon our thorough consideration of this matter, we now reverse this case and remand for entry of an order compelling arbitration and staying the court action.


The record in this case reflects that the respondent herein, Mr. Robert S. Perry ("Mr. Perry"), defendant below, was issued a Citibank MasterCard account in January 1998. At the time relevant to this matter, the terms and conditions of the "Citibank Card Agreement" governing Mr. Perry's account included an arbitration agreement.1 The arbitration agreement included the following provisions:

A party who initiates a proceeding in court may elect arbitration with respect to any Claim advanced in that proceeding by any other party. Claims and remedies sought as part of a class action, private attorney general or other representative action are subject to arbitration on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis.
At any time you or we may ask an appropriate court to compel arbitration of Claims, or to stay the litigation of Claims pending arbitration, even if such Claims are part of a lawsuit, unless a trial has begun or a final judgment has been entered. Even if a party fails to exercise these rights at any particular time, or in connection with any particular Claims, that party can still require arbitration at a later time or in connection with any other claims.

Finally, the agreement included a clause stating that "[n]o portion of this arbitration provision may be amended, severed or waived absent a written agreement between you and us." (Emphasis added).

On September 20, 2010, Citibank filed a debt collection action against Mr. Perry in the Circuit Court of Boone County seeking to garner the balance owed on Mr. Perry's account. Mr. Perry's pro-se answer, in the form of a letter from Mr. Perry and his wife, was filed on October 1, 2010. The letter stated, among other things, that "[w]e do realize that the debt owed is ours." Then, on April 22, 2011, Citibank filed a motion for judgment on the pleadings. There was never a ruling on this motion. After Citibank's motion was filed, there was a period of inactivity for more than three and one-half years, until December 4, 2014, when Citibank sent its first set of discovery requests to Mr. Perry. Mr. Perry obtained counsel, and, on February 24, 2015, the circuit court entered an agreed scheduling order that had been tendered by the parties. According to the agreed scheduling order, counterclaims were to be filed on or before May 1, 2015. Trial was set for November 17, 2015. In compliance with the scheduling order, on May 1, 2015, Mr. Perry, by his counsel, filed an answer to Citibank's complaint and a class counterclaim alleging, inter alia , that Citibank had violated the West Virginia Consumer Credit and Protection Act. Citibank then filed a motion asking the court to compel arbitration of the parties' claims presented in this action. In addition, Citibank sought a stay of the action pending the outcome of the arbitration proceedings.

Following a hearing, the circuit court, by order entered October 15, 2015, concluded that Citibank had implicitly waived its right to arbitration by filing suit in circuit court, litigating its disputes with Mr. Perry in that court, agreeing to an amended scheduling order that allowed counterclaims, issuing fact witness disclosures, requesting judgment on the pleadings, and waiting nearly five years before seeking to invoke its contractual right to arbitrate. This appeal followed.


Citibank's appeal is from an interlocutory ruling denying arbitration. "An order denying a motion to compel arbitration is an interlocutory ruling which is subject to immediate appeal under the collateral order doctrine." Syl. pt. 1, Credit Acceptance Corp. v. Front , 231 W.Va. 518, 519, 745 S.E.2d 556, 557 (2013). We review such an order de novo .

When an appeal from an order denying a motion [to] dismiss is properly before this Court, our review is de novo . See, e.g. , Syl. pt. 4, Ewing [v. Board of Educ. of County of Summers ], 202 W.Va. 228 [230], 503 S.E.2d 541 [543] [ (1998) ] ("When a party, as part of an appeal from a final judgment, assigns as error a circuit court's denial of a motion to dismiss, the circuit court's disposition of the motion to dismiss will be reviewed de novo .").

Credit Acceptance , 231 W.Va. at 525, 745 S.E.2d at 563.

Insofar as our resolution of this matter requires us to consider the language of the parties' contract,

[w]e previously have held that " [i]t is the province of the Court ... to interpret a written contract.’ Syl. Pt. 1[, in part], Stephens v. Bartlett , 118 W.Va. 421, 191 S.E. 550 (1937)." Syl. pt. 1, in part, Orteza v. Monongalia Cnty. Gen. Hosp ., 173 W.Va. 461, 318 S.E.2d 40 (1984). Therefore, "we apply a de novo standard of review to [a] circuit court's interpretation of [a] contract." Zimmerer v. Romano , 223 W.Va. 769, 777, 679 S.E.2d 601, 609 (2009) (per curiam) (citation omitted).

Finch v. Inspectech, LLC , 229 W.Va. 147, 153, 727 S.E.2d 823, 829 (2012). Having set out the proper standards for our review, we now consider the dispositive issue raised in this appeal.


This case is resolved on the single issue of whether Citibank waived its arbitration rights in this matter.2 The circuit court ruled that

Citibank effectively waived any purported arbitration rights it once held because Citibank, inter alia , voluntarily selected Boone County Circuit Court as its preferred forum, litigated its disputes with Mr. Perry in this Court, agreed to an amended scheduling order allowing for counterclaims, issued fact witness disclosures, requested judgment on the pleadings, and waited nearly five years to invoke its purported contractual right to arbitrate. These repeated and voluntarily [sic] actions of Citibank constitute waiver because "[v]oluntary choice is of the very essence of waiver." ...

(Quoting Hoffman v. Wheeling Sav. & Loan Ass'n , 133 W.Va. 694, 713, 57 S.E.2d 725, 735 (1950) ).

Citibank argues that the circuit court erred in finding that Citibank waived its right to arbitrate because, under traditional rules of contract application, Citibank's clear contractual right to seek arbitration at any time prior to judgment or trial must be recognized. In this regard, Citibank contends the arbitration agreement is unambiguous and must be applied.3 Citibank further asserts that language in the "Citibank Card Agreement" allows Citibank to delay enforcing a right without waiving that right: "[w]e can delay in enforcing or fail to enforce any of our rights under this Agreement without losing them." Citibank asserts that, "[b]ecause of the strong federal policy favoring arbitration, ... [courts] will not lightly infer the circumstances constituting waiver." American Recovery Corp. v. Computerized Thermal Imaging, Inc. , 96 F.3d 88, 95 (4th Cir. 1996). Citibank contends that the dispositive inquiry is whether the party objecting to arbitration has suffered actual prejudice.

Mr. Perry argues that Citibank's actions and extreme delay clearly demonstrate it waived its right to compel arbitration in this case. Mr. Perry further contends that Citibank's actions resulted in prejudice to him. He points to the circuit court's findings that certain conduct by Citibank has caused him prejudice. Additionally, Mr. Perry asserts that, the contractual language notwithstanding, Citibank, by its actions, waived its right to compel arbitration.

The arbitration clause at issue provided, in relevant part:

At any time you or we may ask an appropriate court to compel arbitration of Claims, or to stay the litigation of Claims pending arbitration, even if such Claims are part of a lawsuit, unless a trial has begun or a final judgment has been entered. Even if a party fails to exercise these rights at any particular time, or in connection with any particular Claims, that party can still require arbitration at a later time or in connection with any other Claims.

Despite the no waiver clause in the subject arbitration agreement, this Court is entitled to apply standard contract law pertaining to waiver. See Johnson Assocs. Corp. v. HL Operating Corp ., 680 F.3d 713, 717 (6th Cir. 2012) ("[T]he presence of [a] ‘no waiver’ clause does not alter the ordinary analysis undertaken to determine if a party has waived its right to arbitration.... This makes sense because to allow the ‘no waiver’ clause to preclude a finding of waiver would...

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  • W. Va. CVS Pharmacy, LLC v. McDowell Pharmacy, Inc.
    • United States
    • West Virginia Supreme Court
    • February 9, 2017
    ...and to compel arbitration is properly before this Court, our review is de novo . See Citibank, N.A. v. Perry , No. 15–1121, 2016 WL 6677944, at *3, 238 W.Va. 662, ––––, 797 S.E.2d 803, 805 (Nov. 10, 2016) (" ‘When an appeal from an order denying a motion [to] dismiss is properly before this......
  • Camden-Clark Mem'l Hosp. Corp. v. Tuan Nguyen
    • United States
    • West Virginia Supreme Court
    • November 13, 2017 novo the denial of a motion to dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. Citibank, N.A. v. Perry , 238 W.Va. 662, 664, 797 S.E.2d 803, 805 (2016). In order to defeat a motion to dismiss, a plaintiff must allege facts that, if accepted as true, are suffici......
  • Atl. Credit & Fin. Special Fin. Unit, LLC v. Stacy ex rel. Situated
    • United States
    • West Virginia Supreme Court
    • October 26, 2018
    ...Court will not consider on appeal matters that have not been addressed in a trialcourt's final order. See Citibank, N.A. v. Perry, 238 W.Va. 662 n.2, 797 S.E.2d 803 n.2 (2016) ("Because Citibank failed to obtain a ruling on this issue, we find it has not been preserved for appeal. See Syl. ......
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    • United States
    • U.S. District Court — Southern District of West Virginia
    • June 12, 2020
    ...argues that its proposition is further supported by the West Virginia Supreme Court of Appeal's decision in Citibank, N.A. v. Perry, 797 S.E.2d 803 (W. Va. 2016). In Perry, the court considered whether a creditor waived its right to arbitrate, despite a non-waiver clause in the arbitration ......

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