                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Yesterday Delivery Service, Inc. and Norman Ryder, Jr.,
Defendants Below, Petitioners                                                        FILED
                                                                                 March 23, 2020
vs.) No. 19-0164 (Kanawha County 10-C-1892)                                     EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Barbara Weiss, Executrix of the Estate of Daniel Weiss,
Plaintiff Below, Respondent


                               MEMORANDUM DECISION

       Petitioners Yesterday Delivery Service, Inc. and Norman Ryder, Jr., by counsel Richard
W. Weston, appeal the order of the Circuit Court of Kanawha County, entered on January 28,
2019, denying their motion to dismiss the complaint or, in the alternative, stay proceedings and
compel arbitration. Respondent Barbara Weiss, executrix of the estate of Daniel Weiss, appears
by counsel Thomas F. Basile.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.

        Daniel Weiss filed a complaint in the Circuit Court of Kanawha County in October of 2010,
asserting that Yesterday Delivery Service, Inc. and its owner Norman Ryder, Jr. violated the West
Virginia Wage Payment and Collection Act and breached a contract governing Mr. Weiss’s work
as a long-haul truck driver for Yesterday Delivery.1 The agreement between Mr. Weiss and
Yesterday Delivery contained an arbitration provision that required a party to make a written
demand for arbitration within ninety days of a claimed breach or otherwise suffer “an absolute bar
to the institution of any proceedings and a waiver of the claimed breach.” Mr. Weiss did not cite
the arbitration provision in his complaint. Yesterday Delivery and Mr. Ryder filed an answer by
counsel that set forth the affirmative defense that a “condition precedent has not been met,” but
did not move to compel arbitration. Yesterday Delivery and Mr. Ryder filed a counterclaim and
Mr. Weiss set forth his affirmative defenses including “arbitration and award.” The parties
otherwise proceeded through litigation with no apparent regard for the arbitration provision
governing their relationship.


       1
         Mr. Weiss died in 2016, and Ms. Weiss, the executrix of her husband’s estate, was
appropriately substituted.
                                                  1
         In December of 2013, however, after at least two continuances and approximately five
months before the scheduled trial, Yesterday Delivery and Mr. Ryder filed a motion to compel
arbitration. Later, in April of 2014, the parties filed a joint motion to continue deadlines. As partial
justification, they noted that the motion to compel arbitration remained pending, and that the
scheduled hearing on the same had twice been continued, once due to weather and the second time
due to petitioners’ counsel’s illness. The court conducted a brief hearing on the issue in April of
2014. It did not rule at that time, but instructed the parties to proceed with discovery. While the
motion to compel arbitration was pending, the parties engaged in further discovery, including the
taking of Mr. Ryder’s and Mr. Weiss’s depositions. Discovery was markedly contentious and
required the circuit court’s oversight on multiple occasions. At one discovery hearing conducted
in March of 2018, counsel for Yesterday Delivery and Mr. Ryder told the court that they would
like the court to “set the case for trial.” After making that comment, however, counsel reminded
the court (possibly for the first time in four years) of the enduring motion to compel arbitration.

         In January of 2019, Yesterday Delivery and Mr. Ryder filed a petition for writ of
mandamus with this Court, seeking to compel a ruling from the circuit court regarding the motion
to compel arbitration. Prior to the Court’s address of the same, the circuit court entered an order
denying the motion to compel arbitration upon finding the right to arbitration waived by the
“inordinate” time that passed between the filing of the complaint and the filing of the motion to
compel arbitration. Yesterday Delivery and Mr. Ryder appealed the circuit court’s order to this
Court, where they present a single question, which we reformulate as an assignment of error to the
circuit court’s determination that the parties waived arbitration. We review in accordance with this
standard: “When an appeal from an order denying a motion to dismiss and to compel arbitration
is properly before this Court, our review is de novo.” Syl. Pt. 1, W. Virginia CVS Pharmacy, LLC
v. McDowell Pharmacy, Inc., 238 W. Va. 465, 796 S.E.2d 574 (2017).

        Yesterday Delivery and Mr. Ryder argue that the circuit court’s denial is untenable because
“only a round of discovery was exchanged” at the time the motion to compel arbitration was filed,
the Weiss estate suffered no prejudice in the delay, and the answer was sufficient to alert Mr. Weiss
that Yesterday Delivery and Mr. Ryder contemplated arbitration because they averred that “a
condition precedent had not been met.” We find each justification weak in isolation. After filing
the motion to compel arbitration, respondents allowed the motion to grow stale and discovery to
continue disharmoniously for years, even relating to the circuit court a desire that the court “set
the case for trial.” They now assert that Ms. Weiss has suffered no prejudice, though she has
slogged through a civil action for nearly a decade. And, most astonishing, respondents seem to
suggest that burial of the boilerplate phrase “a condition precedent has not been met” in a
responsive pleading sufficiently substitutes for a motion to compel arbitration in clearly conveying
to the court a party’s desire. But as feeble as any of these bases appear alone, they are collectively
crushed under the weight of the time passage between the filing of the complaint and the filing of
the motion to compel arbitration. Three years is an exceeding amount of time to fail to alert a trial
court of an issue so critically affecting the posture of litigation. 2 Accordingly, we find that the



       2
           We note that Yesterday Delivery and Mr. Ryder, generally, have failed to offer
justification for the substantial delay. We are compelled to comment, however, that we are
unpersuaded by the parties’ argument that their change of counsel and any difficulty associated
                                                   2
circuit court did not err in applying waiver and denying the motion to compel.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.


ISSUED: March 23, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




with the transfer of the file crippled their approach. The parties were signatories to the agreement
containing the arbitration clause. The clause was not unknown to them.
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