UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-1215

DAN RYAN BUILDERS, INCORPORATED,

Petitioner - Appellant,

v.

NORMAN C. NELSON; ANGELIA NELSON,

Respondents - Appellees.

Appeal from the United States District Court for the Northern 

District of West Virginia, at Martinsburg. John Preston Bailey, 

Chief District Judge. (3:10-cv-00076-JPB-JES)

Argued: March 20, 2012 Decided: January 29, 2013

Before KEENAN and FLOYD, Circuit Judges, and Norman K. MOON,

Senior United States District Judge for the Western District of 

Virginia, sitting by designation.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Susan Renee Snowden, MARTIN & SEIBERT, LC, Martinsburg, 

West Virginia, for Appellant. Lawrence M. Schultz, BURKE, 

SCHULTZ, HARMAN & JENKINSON, Martinsburg, West Virginia, for 

Appellees. ON BRIEF: Paul B. Weiss, MARTIN & SEIBERT, LC, 

Martinsburg, West Virginia, for Appellant. 

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

The procedural and factual background of this case is 

discussed in our prior published order, in which, pursuant to 

the Uniform Certification of Questions of Law Act, W. Va. Code 

§§ 51-1A-1 through 51-1A-13, this Court certified to the Supreme 

Court of Appeals of West Virginia the following question:

Does West Virginia law require that an arbitration 

provision, which appears as a single clause in a 

multi-clause contract, itself be supported by mutual 

consideration when the contract as a whole is 

supported by adequate consideration?

Dan Ryan Builders, Inc. v. Nelson, 682 F.3d 327, 327 (4th Cir. 

2012). The West Virginia court accepted our request and 

answered this question. Dan Ryan Builders, Inc. v. Nelson, No. 

12-0592, 2012 WL 5834590 (W. Va. Nov. 15, 2012).

The West Virginia court recognized that litigants, such as 

the plaintiffs in this case, often challenge the enforceability 

of arbitration clauses that do not impose equal duties to 

arbitrate on both contracting parties. As the West Virginia 

court noted, those litigants frequently challenge such 

arbitration clauses on the ground that the clauses “lack 

consideration” or “lack mutuality of obligation.” Id. at *6. 

In accord with the majority of courts that have addressed 

the issue, the West Virginia court held that “West Virginia’s 

law of contract formation only requires that a contract as a 

whole be supported by adequate consideration.” Id. at *2, 6. 
3

Therefore, “a single clause within a multi-clause contract,” 

here, the arbitration clause, “does not require separate 

consideration.” Id. at *2. In view of the West Virginia 

court’s holding, the district court’s contrary conclusion cannot 

stand. 

In its answer to our certified question, the West Virginia 

court further explained, however, that mutuality of obligation 

or a lack thereof properly may be considered when a court 

assesses whether a contract or term therein is unconscionable 

under West Virginia law. Id. at *7. The West Virginia court 

was careful to emphasize that any such review concerning 

unconscionability requires an inquiry that is case-specific, and 

cannot be conducted in a manner targeting arbitration provisions 

for disfavored treatment. Id. at *9. Nevertheless, under West 

Virginia’s unconscionability doctrine, a court “may decline to 

enforce a contract clause-such as an arbitration provision-if 

the obligations or rights created by the clause unfairly lack 

mutuality.” Id.

In the present case, the parties disputed whether the 

arbitration clause in this case was unconscionable under West 

Virginia law. The district court did not rule on that issue. 

Because the issue of unconscionability is a fact-specific 

determination, we conclude that this issue is appropriately 

decided in the first instance by the district court. 
4

Accordingly, we vacate the judgment of the district court, and 

remand for further proceedings consistent with this opinion and 

the opinion of the West Virginia court.

VACATED AND REMANDED