Keith Johnson v. United Bank, Inc., and Astorg Auto of Charleston, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
October 28, 2024
KEITH JOHNSON,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Defendant Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 23-ICA-443 (Cir. Ct. of Kanawha Cnty. Case No. 22-C-228)

UNITED BANK, INC., and ASTORG AUTO
OF CHARLESTON, INC.,
Plaintiffs Below, Respondents

MEMORANDUM DECISION

Petitioner Keith Johnson appeals three orders entered by the Circuit Court of
Kanawha County. The first order entered December 13, 2022, denied Mr. Johnson’s
motion to compel arbitration. The second order entered September 5, 2023, imposed
discovery sanctions against Mr. Johnson. The third order also entered September 5, 2023,
in conjunction with the sanctions order, granted a default judgment in favor of
Respondents, United Bank, Inc. (“United”) and Astorg Auto of Charleston, Inc. (“Astorg”)
against Mr. Johnson in the amounts of $36,454.15 and $3,855.41, respectively. United and
Astorg filed a joint response.1 Mr. Johnson filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, disposition in a memorandum decision affirming the circuit court’s order is
appropriate under Rule 21(c) of the West Virginia Rules of Appellate Procedure.

On August 13, 2021, Mr. Johnson executed a contract and security agreement for
the purchase of a 2021 Audi Q7 from Astorg. United provided financing for the vehicle’s
purchase and the contract was assigned from Astorg to United. Mr. Johnson agreed to make
monthly payments to United and United retained a security interest in the vehicle.

Mr. Johnson failed to make any of the agreed upon payments.2 United and Astorg
filed separate lawsuits against Mr. Johnson on March 25, 2022, in the Circuit Court of

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On appeal, Mr. Johnson is self-represented. United and Astorg are represented by
Bryan N. Price, Esq.
2
After the contract was signed but before the first payment was due, United
informed Astorg that it required proof of residency from Mr. Johnson before it would
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Kanawha County. United’s lawsuit, docketed under case number 22-C-228, sought
amounts due under the contract and possession of the vehicle. Astorg’s lawsuit, docketed
under case number 22-C-229, sought reimbursement for a payment it made to United on
behalf of Mr. Johnson. The two cases were consolidated by order entered August 23, 2022,
under case number 22-C-228.

Mr. Johnson filed responsive pleadings and other documents in the consolidated
action, including a motion to compel arbitration. Counsel for United and Astorg noticed
the deposition of Mr. Johnson for December 14, 2022. On December 5, 2022, Mr. Johnson
filed a motion to quash the taking of his deposition and a supplemental motion to compel
arbitration. The circuit court overruled Mr. Johnson’s objection to the taking of his
deposition and denied his motion to compel arbitration by order entered December 13,
2022.

United and Astorg attempted several times over the next six months to secure Mr.
Johnson’s deposition but were unsuccessful. United and Astorg then filed a motion to
compel Mr. Johnson to submit to his deposition. The motion was scheduled for hearing on
August 1, 2023. Counsel for United and Astorg appeared at the hearing, but Mr. Johnson
failed to appear. At the hearing, the circuit court granted United’s and Astorg’s motion to
compel, awarded sanctions against Mr. Johnson and granted judgment in favor of United
and Astorg. Mr. Johnson filed his notice of appeal in this Court on October 3, 2023,
attaching the two September 5, 2023, orders and the previous December 13, 2022, order
denying his motion to compel arbitration.

At the outset, we find that Mr. Johnson’s brief does not comply with the
requirements of Rule 10 of the West Virginia Rules of Appellate Procedure because it fails
to present an argument clearly exhibiting the points of fact and law presented with specific
references to the record on appeal. Instead, Mr. Johnson relies on an assortment of
inapplicable legal concepts supported by citations to irrelevant United States Supreme
Court cases. As we have observed previously, we cannot consider indecipherable
arguments made in appellate briefs. See Vogt v. Macy’s, Inc., 22-ICA-162, 2023 WL
4027501, at *4 (W. Va. Ct. App. June 15, 2023) (memorandum decision) (citing State v.
Lilly, 194 W. Va. 595, 605 n.16, 461 S.E.2d 101, 111 n.16 (1995) (explaining that appellate
courts frequently refuse to address undeveloped, perfunctory, or cursory arguments on
appeal)). However, as has been our past practice, we will be mindful that “[w]hen a litigant
chooses to represent himself, it is the duty of the [court] to insure fairness, allowing
reasonable accommodations for the pro se litigant so long as no harm is done an adverse
party.” Bego v. Bego, 177 W. Va. 74, 76, 350 S.E.2d 701, 703 (1986). Accordingly, we
will address only the issues that we can reasonably determine comprise the substance of

accept assignment of the contract. Mr. Johnson provided residency proof but not until the
first payment was due. United required receipt of the first payment before accepting
assignment of the contract, so Astorg made the first payment to United.
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Mr. Johnson’s appeal. Upon review, we conclude the issues presented are whether the
circuit court erred by denying Mr. Johnson’s motion to compel arbitration and whether the
circuit court erred by imposing discovery sanctions.

Mr. Johnson first argues that the circuit court erroneously denied his motion to
compel arbitration in its December 13, 2022, order. United and Astorg correctly note that
“[a]n 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, 745 S.E.2d 556 (2013). Accordingly, they
contend that this order is unreviewable for two reasons: 1) this Court lacks jurisdiction over
appeals of interlocutory orders; and 2) Mr. Johnson’s appeal of this order was untimely.
We reject both arguments.

United and Astorg cite no authority for the proposition that orders subject to appeal
under the collateral order doctrine cannot be later appealed through the final judgment.
Federal courts have rejected such a rule, finding that “[t]he collateral order doctrine is
permissive, not mandatory.” Singleton v. Apfel, 231 F.3d 853, 856 (11th Cir. 2000); 15A
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure § 3911 (3d ed. 2024) (collecting cases). As the Supreme Court of Appeals of
West Virginia explicitly relied on federal caselaw in defining the collateral order doctrine,
we find no reason to depart from that interpretation. See Robinson v. Pack, 223 W. Va.
828, 832, 679 S.E.2d 660, 664 (2009) (citing Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541 (1949)). Moreover, this permissive approach is consistent with West Virginia
practice on other types of orders that are appealable prior to the entry of final judgment.
See Hubbard v. State Farm Indem. Co., 213 W. Va. 542, 550-51, 584 S.E.2d 176, 184-85
(2003) (explaining that a party can immediately appeal an order that approximates a final
order in nature and effect but is not required to do so).3

Here, Mr. Johnson does not appeal the December 13, 2022, order under the
collateral order doctrine. Instead, he appeals it as part of his timely appeal of the September
5, 2023, final order granting default judgment. Therefore, this is not an interlocutory
appeal, nor was Mr. Johnson’s appeal untimely.

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In one instance, the Supreme Court of Appeals found that the failure to seek
immediate review of an order denying a motion to compel arbitration waived the party’s
right to appeal that order later. See Dan Ryan Builders, Inc. v. Williams, No. 18-0579, 2020
WL 6538832, at *6 (W. Va. Nov. 6, 2020) (memorandum decision). However, the Supreme
Court relied on the fact that the circuit court specifically provided the parties with the
opportunity to certify questions to the Supreme Court of Appeals, and the affected party
declined to seek review on the arbitration issue. See id. Given those circumstances, we find
Dan Ryan Builders, Inc. to be distinguishable.
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The circuit court denied Mr. Johnson’s motion to compel arbitration, finding that he
failed to produce a valid arbitration agreement between the parties. When evaluating a
motion to compel arbitration “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. AMFM, LLC v. King, 230 W. Va. 471, 740
S.E.2d 66 (2013) (citing Syl. Pt. 4, Ruckdeschel v. Falcon Drilling Co., L.L.C., 225 W. Va.
450, 693 S.E.2d 815 (2010)).

This case turns on the first issue—validity. Upon our review of the record, we find
that the contract and security agreement does not contain an arbitration provision. Mr.
Johnson produced a document titled “Multi-Coverage Protection Vehicle Service
Contract,” arguing that its arbitration provision supported his arbitration demand.
However, neither United nor Astorg are parties to the alleged multi-coverage protection
vehicle service contract, and importantly, it is not signed by any party. Mr. Johnson also
provides no explanation of how the unsigned document relates to the claims United and
Astorg assert to enforce obligations under the contract and security agreement. We
therefore find that no enforceable arbitration agreement exists between the parties and the
circuit court correctly denied his motion to compel arbitration.

Mr. Johnson next argues that the circuit court denied him a fair and just legal process
when it imposed discovery sanctions and awarded judgment in favor of United and Astorg.
“The imposition of sanctions by a circuit court under [W. Va. R. Civ. 37(d)] is within the
discretion of the trial court and will not be disturbed absent an abuse of discretion.” Syl.
Pt. 2, Cattrell Companies, Inc. v. Carlton, Inc., 217 W. Va. 1, 614 S.E.2d 1 (2005). The
circuit court imposed the following sanctions pursuant to Rules 37(d) and 37(b)(2) of the
West Virginia Rules of Civil Procedure: (1) an award of attorneys’ fees, costs, and
expenses; (2) striking Mr. Johnson’s pleadings; (3) prohibiting Mr. Johnson from
supporting or opposing any alleged claims or defenses; and (4) awarding a default
judgment against Mr. Johnson.

Based on our review of the record, the discovery sanctions imposed by the circuit
court are supported by numerous factual findings. Mr. Johnson failed to respond to several
written requests to schedule his deposition from counsel for United and Astorg. He also
failed to appear for three properly noticed depositions. On one occasion, Mr. Johnson failed
to appear without providing any notice to counsel for United and Astorg. On another
occasion, he notified counsel for United and Astorg the day prior to the deposition that he
was unable to appear but agreed to a new date. Mr. Johnson then failed to appear on the
new date claiming to be out of town. Counsel for United and Astorg was not informed of
his unavailability until hours after the deposition was scheduled to begin. The circuit court
then concluded that Mr. Johnson was willfully uncooperative, that his conduct caused
unnecessary delay in the proceedings, caused United and Astorg to unnecessarily incur

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attorneys’ fees, court reporter fees, videographer fees and other expenses and was
disrespectful to the court.

We find no abuse of discretion by the circuit court in its factual findings or with the
imposition of discovery sanctions. The circuit court’s final judgment order and ultimate
disposition are reviewed “under an abuse of discretion standard....” Syl. Pt. 6, In re Donald
M., 233 W. Va. 416, 758 S.E.2d 769 (2014) (citing Syl. Pt. 4, Burgess v. Porterfield, 196
W. Va. 178, 469 S.E.2d 114 (1996)). The judgment order was entered based on the circuit
court’s direction in the sanctions order. For the same reasons we found no abuse of
discretion with the imposition of discovery sanctions, we find no abuse of discretion with
entry of the judgment order or with the ultimate disposition of the case.

Accordingly, we affirm the orders entered December 13, 2022, and September 5,
2023.

Affirmed.

ISSUED: October 28, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

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