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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, ex rel.

Williams WPC-1, LLC, and

Lee Dawson,

Petitioners

vs.) No. 21-0423

The Honorable Jeffrey Cramer,

and Coty Lantz,

Respondents

MEMORANDUM DECISION

Petitioners Williams WPC-1, LLC, and Lee Dawson petition this Court for a writ of 

prohibition to halt the circuit court’s May 4, 2021, order that denied petitioner’s motion to dismiss 

and compel arbitration by the respondent, Coty Lantz. Petitioners are represented by Jaime S. 

Tuite, Vanessa A. Wilson and Patrick S. Casey. The respondent is represented by David L. Delk, 

Jr.

The Court has considered the parties’ briefs, oral arguments, and the appendix. Upon 

consideration of the standard of review, the Court finds that a writ of prohibition is appropriate.

Inasmuch as this case does not present a new or significant question of law, this matter is properly 

disposed of through this memorandum decision in accordance with Rule 21 of the Rules of 

Appellate Procedure.

Beginning in 2012, the respondent was employed by petitioner The Williams Companies, 

Inc. (“Williams”), at a facility in Marshall County, West Virginia. On January 6, 2021, Williams 

terminated his employment. On February 9, 2021, the respondent filed suit against Williams and 

his supervisor, petitioner Dawson, alleging retaliatory discharge.

The petitioners responded with a motion to dismiss the suit and to compel respondent to 

participate in arbitration. Petitioner Williams produced an arbitration contract it claims applies to 

each of its employees, effective on January 1, 2020. The contract says that each employee agreed 

to resolve disputes with Williams “exclusively through final and binding arbitration.” Within that

arbitration contract there is a “delegation clause” saying that each employee and Williams agreed 

to let an arbitrator resolve disputes regarding the enforceability of the contract. That delegation 

clause provides:

FILED

November 19, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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You and the Company also agree to resolve exclusively through final and binding 

arbitration all disputes relating to whether this Agreement is enforceable, 

unconscionable, applicable, valid, void, or voidable[.]

The petitioners asserted that Williams had formed an arbitration contract with respondent, that the 

contract was valid and enforceable, and that the retaliatory discharge claim alleged by the 

respondent was within the substantive scope of the contract. Hence, the petitioners asked the 

circuit court to dismiss respondent’s suit and to order respondent to arbitrate his claim.

The respondent opposed petitioners’ motion and challenged the validity of the entire 

arbitration contract. Specifically, the respondent denied that any arbitration contract had been

formed between the parties. In an order entered May 4, 2021, the circuit court agreed with the 

respondent and denied the petitioners’ motion to compel arbitration. The circuit court found that 

the petitioners had failed to establish that a contract was properly formed with the respondent to 

arbitrate disputes.

The petitioners now seek a writ of prohibition from this Court to stop enforcement of the 

May 4, 2021, order. Our standard of review is clear:

In determining whether to entertain and issue the writ of prohibition for 

cases not involving an absence of jurisdiction but only where it is claimed that the 

lower tribunal exceeded its legitimate powers, this Court will examine five factors: 

(1) whether the party seeking the writ has no other adequate means, such as direct 

appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or 

prejudiced in a way that is not correctable on appeal; (3) whether the lower 

tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower 

tribunal’s order is an oft repeated error or manifests persistent disregard for either 

procedural or substantive law; and (5) whether the lower tribunal’s order raises new 

and important problems or issues of law of first impression. These factors are 

general guidelines that serve as a useful starting point for determining whether a 

discretionary writ of prohibition should issue. Although all five factors need not 

be satisfied, it is clear that the third factor, the existence of clear error as a matter 

of law, should be given substantial weight.

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).

The petitioners contend that the circuit court erred when it found that no arbitration contract 

had been formed. The respondent counters that the circuit court’s decision was correct and again 

asserts that the contract was, as a whole, unenforceable. However, there is a controlling clause in 

the contract sidestepped by both the parties and the circuit court: the delegation clause. “A 

‘delegation provision’ is a clause, within an agreement to arbitrate, which clearly and unmistakably 

provides that the parties to the agreement give to the arbitrator the power to decide the validity, 

revocability or enforceability of the arbitration agreement under general state contract law.” Syl. 

pt. 4, Schumacher Homes of Circleville, Inc. v. Spencer, 237 W. Va. 379, 787 S.E.2d 650 (2016).

When a party to an arbitration agreement seeks to resist arbitration, the Federal Arbitration 

Act (“FAA”) requires the parties and the courts to apply the doctrine of “severability” or 
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“separability.” Generally, an arbitration agreement is a sub-part of a larger contract. The FAA 

perceives that “arbitration clauses as a matter of federal law are ‘separable’ from the contracts in 

which they are embedded[.]” Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 402

(1967).

The gist of the doctrine is that an arbitration clause in a larger contract must be 

carved out, severed from the larger contract, and examined separately. The doctrine 

treats the arbitration clause as if it is a separate contract from the contract containing 

the arbitration clause, that is, the “container contract.” Under the doctrine, 

arbitration clauses must be severed from the remainder of a contract, and must be 

tested separately under state contract law for validity and enforceability.

Schumacher Homes, 237 W. Va. at 387-88, 787 S.E.2d at 658-59 (cleaned up). We concluded in 

Syllabus Point 4, in part, of State ex rel. Richmond Am. Homes of W. Va., Inc. v. Sanders, 228 W. 

Va. 125, 717 S.E.2d 909 (2011):

Under the Federal Arbitration Act, 9 U.S.C. § 2, and the doctrine of 

severability, only if a party to a contract explicitly challenges the enforceability of 

an arbitration clause within the contract, as opposed to generally challenging the 

contract as a whole, is a trial court permitted to consider the challenge to the 

arbitration clause. . . .

Stated simply, in the typical case, a party resisting arbitration cannot challenge the entire contract. 

Instead, the party must sever or separate an arbitration clause from the overarching contract and 

then challenge the validity of the arbitration clause alone. In the absence of such a narrow 

challenge, courts must presume the arbitration clause is valid and enforce its terms.

The overarching arbitration contract in this case contains a delegation clause. This Court 

has determined that a delegation clause is nothing more than a narrow, written provision to settle 

by arbitration any question about the validity and enforceability of the arbitration agreement. 

Schumacher Homes, 237 W. Va. at 389, 787 S.E.2d at 660 (citing Rent-A-Ctr., W., Inc. v. Jackson, 

561 U.S. 63, 70 (2010)). Moreover, the doctrine of severability applies with equal force to a 

delegation provision: it must be separated from its parent arbitration contract and directly 

challenged in the trial court. If it is not separately challenged, then it is presumed valid and must 

be enforced. As we said in Rent-A-Ctr., Inc. v. Ellis, 241 W. Va. 660, 668, 827 S.E.2d 605, 613 

(2019) (footnotes omitted):

[B]ecause a delegation provision is a mini-arbitration agreement divisible from 

both the broader arbitration clause and the even broader contract in which the 

delegation provision and arbitration clause are found, a party must specifically 

object to the delegation provision in order for a court to consider the challenge. A 

party resisting delegation to an arbitrator of any question about the enforceability 

of an arbitration agreement must specifically challenge the delegation provision 

first.

To that end, this Court has held that:
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Under the Federal Arbitration Act, 9 U.S.C. § 2, and the doctrine of 

severability, where a delegation provision in a written arbitration agreement gives 

to an arbitrator the authority to determine whether the arbitration agreement is valid, 

irrevocable or enforceable under general principles of state contract law, a trial 

court is precluded from deciding a party’s challenge to the arbitration agreement. 

When an arbitration agreement contains a delegation provision, the trial court must 

first consider a challenge, under general principles of state law applicable to all 

contracts, that is directed at the validity, revocability or enforceability of the 

delegation provision itself.

Syl. pt. 5, Schumacher Homes, 237 W. Va. at 379, 787 S.E.2d at 650.

The record in the instant case establishes that the contract at issue – the arbitration contract

– contains a delegation provision. That provision delegates to an arbitrator the authority to 

determine whether the arbitration contract is valid, enforceable, or otherwise revocable. The 

record also shows that the respondent did not sever the delegation provision from the overarching 

contract and challenge the validity, revocability, or enforceability of the delegation provision itself. 

Accordingly, under the FAA, the circuit court was required to presume the delegation provision 

was valid, enforce its terms, and refer the case to arbitration for an arbitrator to assess the parties’

contentions, namely, whether they properly formed an arbitration contract. The circuit court erred 

as a matter of law by doing otherwise.

In light of our standard of review, the record establishes that the lower tribunal’s order is 

clearly erroneous as a matter of law. Further, the petitioners have no adequate means, such as a 

direct appeal, to obtain the relief accorded by the parties’ delegation clause, and the petitioner will 

be prejudiced by being forced to litigate rather than arbitrate the parties’ dispute regarding the 

validity, revocability, or enforceability of the arbitration contract. Thus, a writ of prohibition is 

appropriate.

Writ Granted.

ISSUED: November 19, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hutchison

Justice William R. Wooton