STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

East Coast Underground, LLC, FILED 

Plaintiff Below, Petitioner March 13, 2015 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 14-0663 (Harrison County 14-76) OF WEST VIRGINIA 

Daniel Utility Construction, Incorporated, 

Defendant Below, Respondent 

MEMORANDUM DECISION 

Petitioner East Coast Underground, LLC, by counsel Gregory H. Schillace, appeals the 

June 6, 2014, order of the Circuit Court of Harrison County, which granted Respondent Daniel 

Utility Construction’s motion to dismiss on the grounds of improper venue. Respondent, by 

counsel Kenneth E. Webb, Jr. filed a response. 

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 circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

On April 18, 2013, petitioner and respondent entered into a subcontract which contained 

the following forum-selection clause: 

This Agreement shall be governed and construed in accordance with the 

laws of the State of Arkansas. [Petitioner] does hereby irrevocably consent to the 

exclusive jurisdiction of the court of the State of Arkansas with respect to any 

action or proceedings arising between the parties and expressly covenant and 

agrees that the exclusive jurisdiction for disputes and enforcement actions arising 

hereunder shall occur in Pulaski County, Arkansas. 

On or about February 14, 2014, petitioner instituted a civil action in the Circuit Court of 

Harrison County, seeking to recover sums due and owing for services provided to respondent. In 

lieu of filing an answer to the complaint, respondent filed a motion to dismiss. The motion to 

dismiss asserted that venue was improper based upon the forum-selection clause contained in the 

subcontract between parties. Petitioner filed a response to the motion to dismiss, and attached the 

affidavit of the sole member/manager of petitioner, Richard Domas, in support of its response. In 

the affidavit, Mr. Domas admitted that he was intimately and exclusively involved on behalf of 

petitioner in negotiating, entering, and executing the “Subcontract Agreement.” Mr. Domas also 

stated that respondent did not discuss, mention, or communicate to him any information with 

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respect to the forum-selection clause, and that the agreement was fully and completely prepared 

by representatives of respondent. Mr. Domas additionally claimed that there was no negotiation 

with respect to the forum-selection clause and no information imparted to him with respect to 

that clause. 

On June 6, 2014, the circuit court granted respondent’s motion to dismiss for improper 

venue. Petitioner now appeals. Petitioner asserts that the circuit court erred by granting 

respondent’s motion to dismiss, and enforcing the forum selection clause of the subcontract. 

“This Court’s review of a trial court’s decision on a motion to dismiss for improper venue is for 

abuse of discretion.” Syl. Pt. 1, United Bank v. Blosser, 218 W.Va. 378, 624 S.E.2d 815 (2005). 

Relying upon Caperton v. A.T. Massey Coal Co., Inc., 225 W.Va. 128, 690 S.E.2d 322 

(2009), petitioner claims that the forum-selection clause was not reasonably communicated to 

petitioner, and therefore not enforceable. In Caperton, this Court adopted a four part test to 

determine if a claim should be dismissed based upon a forum selection clause. 

Determining whether to dismiss a claim based on a forum-selection clause 

involves a four-part analysis. The first inquiry is whether the clause was 

reasonably communicated to the party resisting enforcement. The second step 

requires classification of the clause as mandatory or permissive, i.e., whether the 

parties are required to bring any dispute to the designated forum or are simply 

permitted to do so. The third query asks whether the claims and parties involved 

in the suit are subject to the forum-selection clause. If the forum-selection clause 

was communicated to the resisting party, has mandatory force and covers the 

claims and parties involved in the dispute, it is presumptively enforceable. The 

fourth, and final, step is to ascertain whether the resisting party has rebutted the 

presumption of enforceability by making a sufficiently strong showing that 

enforcement would be unreasonable and unjust, or that the clause was invalid for 

such reasons as fraud or overreaching. 

225 W.Va. at 133, 690 S.E.2d at 327, syl. pt. 4. Petitioner concedes that the subcontract clause 

has mandatory force, and covers the claims and parties involved in the dispute. But, petitioner 

asserts that additional communication is required outside of the written terms of the contract, and 

that no discussion of this forum-selection clause took place prior to the signing of the agreement. 

Petitioner admits that if this Court were to find that the communication of the clause was 

sufficient, that the clause is presumptively enforceable. Petitioner attempts to rebut this 

presumption by arguing that enforcement of the clause would be unreasonable and unjust; 

however, petitioner asserts that it was denied the opportunity to develop facts to support this 

contention because of the dismissal of the complaint. 

We find that the circuit court did not abuse its discretion by holding that the forumselection clause of the parties’ contract is enforceable; and properly granted respondent’s motion 

to dismiss. Petitioner has failed to demonstrate that the forum-selection clause was not 

reasonably communicated, or to show that enforcement of the clause was unreasonable or unjust. 

Richard Domas, the sole member and manager of petitioner, admitted that he was “intimately 

and exclusively” involved on behalf of petitioner in negotiating, entering, and executing the 

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contract, which specifically contains the choice of law and venue provisions. Mr. Domas signed 

the contract in his individual capacity, which included a forum-selection clause that was in 

regular sized font and under the heading “Choice of Law and Venue: Subcontractor’s 

Remedies.” Furthermore, Paragraph 33 of the contract states as follows: 

The parties hereto acknowledge and agree that, during any negotiations 

which resulted in this Agreement, each had the unlimited right and opportunity to 

make demands and proposals with respect to any subject matter, each had the 

right to consult an attorney, that all understanding and agreements arrived at by 

the parties after the exercise of that right and opportunity are set forth in this 

Agreement, and, as such, each Party shall be deemed to be the drafter of this 

Agreement. 

Accordingly, we find the circuit court did not commit error by dismissing the complaint in this 

matter for improper venue. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: March 13, 2015 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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