        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                               January 2016 Term                          FILED
                                _______________                        June 13, 2016
                                                                          released at 3:00 p.m.
                                  No. 14-0441                           RORY L. PERRY II, CLERK
                                                                      SUPREME COURT OF APPEALS
                                _______________                            OF WEST VIRGINIA


              SCHUMACHER HOMES OF CIRCLEVILLE, INC.,

                        a foreign corporation,

                     Defendant Below, Petitioner


                                         v.

                                JOHN SPENCER

                          and CAROLYN SPENCER,

                          Plaintiffs Below, Respondents


      ____________________________________________________________

                 Appeal from the Circuit Court of Mason County

                    The Honorable David W. Nibert, Judge

                           Civil Action No. 13-C-116


                      REVERSED AND REMANDED
      ____________________________________________________________

                            Submitted: May 17, 2016
                              Filed: June 13, 2016

Don C.A. Parker, Esq.                         Randall L. Trautwein, Esq.

Nicholas P. Mooney II, Esq.                   Michael L. Powell, Esq.

Spilman Thomas & Battle PLLC                  Lamp, Bartram, Levy, Trautwein &

Charleston, West Virginia                     Perry P.L.L.C.

Attorneys for the Petitioner                  Huntington, West Virginia

                                              Attorneys for the Respondents
Mychal S. Schulz, Esq.
Babst, Calland, Clements &
Zomnir, P.C.
Charleston, West Virginia
Attorney for Amicus Curiae,
Defense Trial Counsel of West Virginia
Mark A. Robinson, Esq.

Justin D. Jack, Esq.

Flaherty Sensabaugh Bonasso, PLLC

Charleston, West Virginia

Attorneys for Amicus Curiae,

West Virginia Health Care Association,

Inc.




CHIEF JUSTICE KETCHUM delivered the Opinion of the Court.

                              SYLLABUS BY THE COURT



              1.     “Under the Federal Arbitration Act, 9 U.S.C. § 2, a written provision

to settle by arbitration a controversy arising out of a contract that evidences a transaction

affecting interstate commerce is valid, irrevocable, and enforceable, unless the provision

is found to be invalid, revocable or unenforceable upon a ground that exists at law or in

equity for the revocation of any contract.”         Syllabus Point 6, Brown v. Genesis

Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250 (2011), reversed on other grounds by

Marmet Health Care Ctr., Inc. v. Brown, 132 S.Ct. 1201 (2012).

              2.     “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.

However, the trial court may rely on general principles of state contract law in

determining the enforceability of the arbitration clause. If necessary, the trial court may

consider the context of the arbitration clause within the four corners of the contract, or

consider any extrinsic evidence detailing the formation and use of the contract.” Syllabus

Point 4, State ex rel. Richmond American Homes of West Virginia, Inc. v. Sanders, 228

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

              3.     “When a trial court is required to rule upon a motion to compel

arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-307 (2006), the

authority of the trial court is limited to determining the threshold issues of (1) whether a


                                              i
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.” Syllabus

Point 2, State ex rel. TD Ameritrade, Inc. v. Kaufman, 225 W.Va. 250, 692 S.E.2d 293

(2010).

              4.      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.

              5.      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.

              6.      “Nothing in the Federal Arbitration Act, 9 U.S.C. § 2, overrides

normal rules of contract interpretation. Generally applicable contract defenses—such as

laches, estoppel, waiver, fraud, duress, or unconscionability—may be applied to

invalidate an arbitration agreement.” Syllabus Point 9, Brown v. Genesis Healthcare

Corp., 228 W.Va. 646, 724 S.E.2d 250 (2011), reversed on other grounds by Marmet

Health Care Ctr., Inc. v. Brown, 132 S.Ct. 1201 (2012).

                                               ii
              7.     Under the Federal Arbitration Act, 9 U.S.C. § 2, there are two

prerequisites for a delegation provision to be effective.      First, the language of the

delegation provision must reflect a clear and unmistakable intent by the parties to

delegate state contract law questions about the validity, revocability, or enforceability of

the arbitration agreement to an arbitrator. Second, the delegation provision must itself be

valid, irrevocable and enforceable under general principles of state contract law.




                                            iii
Chief Justice Ketchum:

                 This case is again before the Court upon a remand from the United States

Supreme Court. The case began as an appeal of an order from the Circuit Court of

Mason County, and involves an arbitration agreement between a home builder and a

home buyer. The circuit court refused to enforce the arbitration agreement after finding it

was unconscionable. In a prior opinion, we affirmed the circuit court’s order.

                 As set forth below, we now reverse the circuit court’s order. Before the

circuit court and this Court, the builder argued that language in the arbitration agreement

delegated questions about unconscionability to the arbitrator for resolution. The home

buyer never specifically challenged the delegation language, before the circuit court or

this Court. We find that the home buyer has therefore waived any right to challenge the

delegation language. We remand the case to the circuit court, and direct that the parties’

dispute regarding the validity, revocability, or enforceability of the arbitration agreement

be referred to arbitration.


                                     I.

                    FACTUAL AND PROCEDURAL BACKGROUND


                 In June 2011, John and Carolyn Spencer (“the plaintiffs”) signed a form

contract with defendant Schumacher Homes of Circleville, Inc. (“Schumacher”), for the

construction of a house in Milton, West Virginia. The contract contains an arbitration

clause by which the parties agreed, in relevant part, “that any claim, dispute or cause of

action, of any nature . . . shall be subject to final and binding arbitration by an

arbitrator[.]”

                                             1

              Within another part of the arbitration clause is language that Schumacher

contends is a “delegation provision” saying that the parties agreed to delegate, from the

courts to an arbitrator, any question about the enforceability of the arbitration clause. A

delegation provision is a written agreement, nestled within an arbitration clause, to vest

the arbitrator with sole authority to resolve any dispute over the validity, revocability or

enforceability of the arbitration clause under state contract law.         The language in

Schumacher’s form contract comprising the delegation provision states:

              The arbitrator(s) shall determine all issues regarding the
              arbitrability of the dispute.

Nowhere in the contract is the term “arbitrability” defined for the parties.

              In July 2013, the plaintiffs brought suit against Schumacher in the circuit

court claiming that there were defects in the newly-built house.           In August 2013,

Schumacher filed a motion asking the circuit court to dismiss the plaintiffs’ suit and to

compel the plaintiffs to participate in arbitration. Neither Schumacher’s motion nor its

legal memorandum supporting the motion made any mention of the delegation provision.

The plaintiffs responded to the motion by writing that the court should find that the entire

arbitration clause was unconscionable and unenforceable under state contract law.

              At a hearing in February 2014, Schumacher asserted for the first time that

the arbitration clause contained a delegation provision. Schumacher argued to the circuit

court that, because of the delegation language, the court had no power to weigh the

unconscionability of the arbitration clause. Schumacher stated that upon invocation of a

delegation provision, “that’s really the end of the inquiry” and “[i]t’s for the arbitrator to


                                              2

decide whether [the arbitration clause is] unconscionable.” The plaintiffs, apparently

caught off guard, did not mention the delegation language in their oral argument to the

circuit court, nor did they seek additional time to respond to Schumacher’s argument.

Instead, the plaintiffs’ argument centered solely upon the unconscionable aspects of the

arbitration clause.

               In an order dated March 6, 2014, the circuit court denied Schumacher’s

motion to dismiss and compel arbitration. The circuit court found that, as a whole, the

arbitration clause was procedurally and substantively unconscionable. The circuit court’s

order did not address the delegation provision. Schumacher appealed the circuit court’s

order to this Court.

               Schumacher’s petition for appeal specifically raised the circuit court’s

failure to address the delegation provision. Schumacher asserted that the circuit court had

“erred by ruling on questions of arbitrability despite the existence of a provision in the

parties’ Arbitration Agreement that vested the arbitrator with authority to determine all

issues of arbitrability relating to the dispute.”1

               The plaintiffs’ response brief, however, did not challenge the delegation

provision and, in fact, made no mention of Schumacher’s assertion of the delegation

provision. The plaintiffs’ response brief recited the same arguments as the plaintiffs’




               1
                   Petitioner’s Brief at 1.


                                                3

brief to the circuit court and focused solely upon “whether the arbitration provision is

unenforceable as being unconscionable.”2

               Our opinion in Schumacher Homes of Circleville, Inc. v. Spencer (hereafter

“Schumacher I”)3 explicated the law of arbitration agreements and delegation provisions

under the Federal Arbitration Act (“the FAA”). Under the FAA, the language of a

delegation provision must reflect the parties’ clear and unmistakable intention to delegate

issues about the validity, revocability, or enforceability of the arbitration agreement to an

arbitrator.4   We then examined the language of Schumacher’s purported delegation

provision and found the word “arbitrability” to be ambiguous. We determined that the

circuit court would have been within its rights not to enforce the delegation language

because it “[did] not reflect a clear and unmistakable intent by the parties to delegate state

contract law questions about the validity, revocability, or enforceability of the arbitration

clause to an arbitrator.”5

               Schumacher then petitioned the United States Supreme Court for a writ of

certiorari. Schumacher asserted that, under Supreme Court precedent, “a delegation



               2
                   Response to Petition for Appeal at 8.
               3
               Schumacher Homes of Circleville, Inc. v. Spencer, 235 W.Va. 335, 774
S.E.2d 1 (2015).
               4
                   235 W.Va. at 346, 774 S.E.2d at 12.
               5
               235 W.Va. at 348, 774 S.E.2d at 14. See also, Alan Scott Rau, “The
Arbitrability Question Itself,” 10 Am. Rev. Int’l Arb. 287, 308 (1999); Michelle St.
Germain, “The Arbitrability of Arbitrability,” 2005 J. of Disp. Res. 523 (2005).


                                                4

provision contained within an arbitration agreement must be specifically enforced unless

the party opposing arbitration specifically challenges the delegation provision.”6 In an

order issued February 29, 2016, the Supreme Court granted the writ of certiorari, vacated

Schumacher I, and remanded the case back to this Court “for further consideration in

light of [their new opinion in] DIRECTV, Inc. v. Imburgia, 577 U.S. ___, 136 S.Ct. 463,

193 L.Ed.2d 365 (2015).”7

             Upon remand, we asked the parties for supplemental briefs that were to

“solely and specifically address how the Supreme Court’s decision in DIRECTV, Inc. v.

Imburgia affects this Court’s resolution of the issues in this case.”8 This was largely

because the DIRECTV opinion was decided by the Supreme Court eight months after our

opinion in Schumacher I.9

             The parties’ supplemental briefs did not dispute this Court’s explication in

Schumacher I of the federal law underlying arbitration agreements, but focused on

whether the word “arbitrability” had a clear and unmistakable meaning for the parties.

Further, at oral argument, counsel for Schumacher agreed that the law stated in the




             6
                 Petition for a Writ of Certiorari at 12.

             7
               See Schumacher Homes of Circleville, Inc. v. Spencer, 136 S.Ct. 1157,

194 L. Ed. 2d 164 (2016).
             8
                 Order, March 2, 1016.
             9
                 Schumacher I was issued April 24th; DIRECTV was issued December 14th.


                                               5

syllabus points10 and within the text of Schumacher I was correct; counsel asserted that it

was the application of that law that was in error.

              With the Schumacher I opinion vacated by the Supreme Court’s order, we

now reexamine the law of arbitration, the law of delegation provisions, and how courts

and litigants should treat those contractual promises in light of the FAA, our state’s

contract law, and DIRECTV, Inc. v. Imburgia.11


                                        II.

                                STANDARD OF REVIEW


              “An order denying a motion to compel arbitration is an interlocutory ruling

which is subject to immediate appeal under the collateral order doctrine.”12 Because the

circuit court’s ruling denied Schumacher’s motion to dismiss, we review the circuit

court’s order de novo.13




              10
                  Syllabus points are constitutionally required in each opinion of this
Court. W.Va. Const. art. VIII, § 4. “The consequence of this [constitutional] provision is
that the Court itself—not the reporter of decisions or the publisher—drafts the syllabus in
a published opinion. As a result, the syllabus in every published opinion is an integral
part of the decision itself. Each point in the syllabus is numbered, which facilitates ease
of reference in later opinions.” State v. McKinley, 234 W.Va. 143, 149, 764 S.E.2d 303,
309 (2014).
              11
                   577 U.S. ___, 36 S.Ct. 463, 193 L.Ed.2d 365 (2015).
              12
               Syllabus Point 1, Credit Acceptance Corp. v. Front, 231 W.Va. 518, 745
S.E.2d 556 (2013). See also, W.Va. Code § 55-10-30 [2015] (section of the Revised
Uniform Arbitration Act setting forth when arbitration matters may be appealed).
              13
              See Syllabus Point 4, Ewing v. Bd. of Educ. of Cnty. of Summers, 202
W.Va. 228, 503 S.E.2d 541 (1998) (“When a party, as part of an appeal from a final
                                                                     (continued . . .)
                                              6

                                           III.

                                        ANALYSIS


              The issue we focus upon concerns the effect of a “delegation provision”

contained within an arbitration clause in a larger contract.          The parties agree our

discussion of the issue is controlled by the FAA.

              Schumacher argues that the arbitration clause in its form contract contains

language that is a delegation provision. The provision says that “[t]he arbitrator(s) shall

determine all issues regarding the arbitrability of the dispute.” The contract does not

define “arbitrability.” Still, Schumacher argues that the trial court erred in finding the

entire arbitration clause unconscionable, and should have enforced the delegation

language and referred all of the parties’ claims about “arbitrability” to arbitration.

              The plaintiffs made no argument in the circuit court challenging the

interpretation, enforceability or validity of the delegation language. By the same token,

counsel for Schumacher never raised, discussed, or briefed the language until oral

argument before the circuit court.14 It is clear that counsel for the plaintiffs did not have




judgment, assigns as error a circuit court’s denial of a motion to dismiss, the circuit
court’s disposition of the motion to dismiss will be reviewed de novo.”).
              14
                 In a similar belated fashion, on Friday, May 13, 2016, four days before
the supplemental oral arguments in this case, counsel for Schumacher hand delivered a
letter to the Clerk of this Court. The professed reason for the letter was to supply the
Court with “new” legal authority pursuant to Rule 10(i) of the Rules of Appellate
Procedure. Attached to the letter was a 2004 Ohio Supreme Court opinion, and
plaintiffs’ counsel was mailed a copy. It appears that the letter was an attempt to
disadvantage the plaintiffs, because it was destined to be reviewed by the members of this
                                                                           (continued . . .)
                                              7

prior notice of Schumacher’s intent to rely upon the delegation provision. However, once

Schumacher did so, counsel for the plaintiffs should not have ignored the argument.

              Before this Court, Schumacher specifically asserted that the circuit court

should have enforced the delegation provision. Inexcusably, the plaintiffs’ counsel never

challenged the provision. As we discuss below, under the FAA and the Supreme Court’s

opinions interpreting the FAA, a delegation provision contained within an arbitration

agreement must be enforced unless the party opposing arbitration specifically challenges

the delegation provision. Hence, our proper course in Schumacher I should have been to

enforce the delegation language.

              The primary substantive provision of the FAA is Section 2,15 which we

have interpreted as follows:



Court the following Monday, the day before oral arguments. Further, plaintiffs’ counsel
would not have had time to research and draft a response before oral arguments.

               Rule 10(i) permits a party to present to the Court “late authorities, newly
enacted legislation, or other intervening matters that were not available in time to have
been included in the party’s brief[.]” In the five weeks before oral argument,
Schumacher had already filed two briefs with the Court. Furthermore, this Court had
ordered the parties’ briefs to be limited “solely and specifically” to the U.S. Supreme
Court’s decision in DIRECTV. The letter violates the Court’s order and raises a new
legal question not addressed in either of Schumacher’s briefs or by DIRECTV. Legally
stated, the letter does not provide new legal authorities, legislation or matters that were
not available in time to have been included in the party’s brief(s).
              15
                   9 U.S.C. § 2 [1947] states:

                     A written provision in any maritime transaction or a
              contract evidencing a transaction involving commerce to
              settle by arbitration a controversy thereafter arising out of
              such contract or transaction, or the refusal to perform the
                                                                          (continued . . .)
                                                 8

                      Under the Federal Arbitration Act, 9 U.S.C. § 2, a
              written provision to settle by arbitration a controversy arising
              out of a contract that evidences a transaction affecting
              interstate commerce is valid, irrevocable, and enforceable,
              unless the provision is found to be invalid, revocable or
              unenforceable upon a ground that exists at law or in equity for
              the revocation of any contract.16

              The FAA recognizes that an agreement to arbitrate is a contract. The rights

and liabilities of the parties are controlled by the state law of contracts. If the parties

have entered into a contract (which is valid under state law) to arbitrate a dispute, then

the FAA requires courts to honor parties’ expectations and compel arbitration.17

Conversely, a party cannot be forced to submit to arbitration any dispute which he or she




              whole or any part thereof, or an agreement in writing to
              submit to arbitration an existing controversy arising out of
              such a contract, transaction, or refusal, shall be valid,
              irrevocable, and enforceable, save upon such grounds as exist
              at law or in equity for the revocation of any contract.
              16
                 Syllabus Point 6, Brown v. Genesis Healthcare Corp., 228 W.Va. 646,
724 S.E.2d 250 (2011) (“Brown I”), overruled on other grounds by Marmet Health Care
Center, Inc. v. Brown, 132 S.Ct. 1201 (2012).
              17
                  Syllabus Point 7 of Brown I, 228 W.Va. at 656-57, 724 S.E.2d at 260-61,
states this principle:

                      The purpose of the Federal Arbitration Act, 9 U.S.C. §
              2, is for courts to treat arbitration agreements like any other
              contract. The Act does not favor or elevate arbitration
              agreements to a level of importance above all other contracts;
              it simply ensures that private agreements to arbitrate are
              enforced according to their terms.


                                             9

has not agreed to submit. A court may submit to arbitration “those disputes – but only

those disputes – that the parties have agreed to submit to arbitration.”18


                                            A.

                                  Doctrine of Severability


              When a lawsuit is filed implicating an arbitration agreement, and a party to

the agreement seeks to resist arbitration, the Supreme Court has interpreted the FAA to

require application of the doctrine of “severability” or “separability.” 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.’”19 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. In Syllabus Point 4 of State ex rel. Richmond American

Homes v. Sanders, we said in part:

                     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



              18
               First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct.
1920, 1924 (1995). See also State ex rel. Richmond American Homes of West Virginia v.
Sanders, 228 W.Va. 125, 129, 717 S.E.2d 909, 913 (2011) (same).
              19
               Stephen J. Ware, Arbitration Law’s Separability Doctrine After Buckeye
Check Cashing, Inc. v. Cardegna, 8 Nevada L.J. 107, 109 (2007).


                                               10

              challenging the contract as a whole, is a trial court permitted
              to consider the challenge to the arbitration clause.20

              Additionally, the FAA requires a severed arbitration clause to be evaluated

under precepts of contract law applicable to any contract (not just arbitration

agreements).21 Hence, we concluded in Syllabus Point 4 of Richmond American Homes

that:

              [T]he trial court may rely on general principles of state
              contract law in determining the enforceability of the
              arbitration clause. If necessary, the trial court may consider
              the context of the arbitration clause within the four corners of
              the contract, or consider any extrinsic evidence detailing the
              formation and use of the contract.22

In other words, in determining if the severed arbitration clause is enforceable under

generic principles of contract law, the trial court can look at other parts of the contract

that relate to, support, or are otherwise entangled with the operation of the arbitration

clause.




              20
                   Richmond American Homes, 228 W.Va. at 129, 717 S.E.2d at 913.
              21
                   Syllabus Point 8 of Brown I, 228 W.Va. at 657, 724 S.E.2d at 261, states
this rule:

                     A state statute, rule, or common-law doctrine, which
              targets arbitration provisions for disfavored treatment and
              which is not usually applied to other types of contract
              provisions, stands as an obstacle to the accomplishment and
              execution of the purposes and objectives of the Federal
              Arbitration Act, 9 U.S.C. § 2, and is preempted.
              22
                   Richmond American Homes, 228 W.Va. at 129, 717 S.E.2d at 913.


                                             11

              The United States Supreme Court has repeatedly interpreted the FAA to

require questions about the validity of an arbitration provision to be severed and

adjudicated separately from any other contractual question. “‘This doctrine is essentially

a pleading standard’ that holds that ‘only if a party explicitly challenges the

enforceability of an arbitration clause within a contract is a court then permitted to

consider challenges to the arbitration clause.’”23

              The doctrine of severability means this: If a party challenges
              the enforceability of the entire contract (including the
              arbitration clause)—that is, the party does not sever the
              arbitration clause from the rest of the contract and make a
              discrete challenge to the validity of the arbitration clause—
              then the court is completely deprived of authority and only an
              arbitrator can assess the validity of the contract, including the
              validity of the arbitration clause.24

              Once the arbitration clause has been severed or separated out for scrutiny,

the FAA limits the trial court to considering only two threshold questions: (1) Under state

contract law, is there a valid, irrevocable, and enforceable arbitration agreement between

the parties? And, (2) Does the parties’ dispute fall within the scope of the arbitration

agreement?    This second question must be weighed in view of the FAA being a

“congressional declaration of a liberal federal policy favoring arbitration agreements,”




              23
               Id., 228 W.Va. at 134, 717 S.E.2d at 918 (quoting Brown I, 228 W.Va. at
675, 724 S.E.2d at 279).
              24
                Brown I, 228 W.Va. at 675, 724 S.E.2d at 279 (2011) (quotations and
footnotes omitted).


                                             12

and establishing that “any doubts concerning the scope of arbitrable issues should be

resolved in favor of arbitration.”25 As we once said:

                     When a trial court is required to rule upon a motion to
              compel arbitration pursuant to the Federal Arbitration Act, 9
              U.S.C. §§ 1-307 (2006), 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.26

              With the concept of severance of arbitration clauses in mind, we now turn

to the United States Supreme Court’s jurisprudence concerning delegation provisions.


                                           B.

                         Delegation Provisions and Severability


              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.27



              25
                Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24,
103 S.Ct. 927, 941 (1983) (footnote added).
              26
               Syllabus Point 2, State ex rel. TD Ameritrade, Inc. v. Kaufman, 225
W.Va. 250, 692 S.E.2d 293 (2010).
              27
              For an example of a clear delegation provision, the Supreme Court once
examined delegation language in an arbitration agreement that provided:

              The Arbitrator, and not any federal, state, or local court or
              agency, shall have exclusive authority to resolve any dispute
              relating to the interpretation, applicability, enforceability or
              formation of this Agreement including, but not limited to any
                                                                             (continued . . .)
                                             13

              The way that courts treat a delegation provision within an arbitration

agreement should reflect the principle that arbitration is purely a matter of contract. In

their contract, the parties may agree that questions about the validity, revocability or

enforceability of an arbitration agreement under state contract law will be delegated from

a court to an arbitrator. “Because the parties are the masters of their collective fate, they

can agree to arbitrate almost any dispute—even a dispute over whether the underlying

dispute is subject to arbitration.”28

              The United States Supreme Court extended the severability doctrine to a

delegation provision within an arbitration agreement in Rent-A-Center, West, Inc. v.




              claim that all or any part of this Agreement is void or
              voidable.

Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 66, 130 S.Ct. 2772, 2775 (2010).
              28
                   Bruni v. Didion, 160 Cal.App.4th 1272, 1286, 73 Cal.Rptr.3d 395, 407
(2008).

              On a related note, the Revised Uniform Arbitration Act, W.Va. Code § 55–
10–8(c) [2015], provides that every “decision as to whether the arbitration agreement is
enforceable shall be made by a court of competent jurisdiction” regardless of what the
parties may have otherwise agreed. As to contracts affecting interstate commerce,
Section 8(c) appears to conflict with the Supreme Court’s holdings that any state statute
which impedes an arbitration agreement and targets it for treatment not usually applied to
other kinds of contracts is preempted by the FAA. See Syllabus Point 8, Brown I, 228
W.Va. at 657, 724 S.E.2d at 261; Southland Corp. v. Keating, 465 U.S. 1, 16, 104 S.Ct.
852, 861 (1984) (the FAA “foreclose[s] state legislative attempts to undercut the
enforceability of arbitration agreements.”). Under the holdings of the United States
Supreme Court, Section 8(c) may be preempted by the FAA if an arbitration agreement
contains a valid and enforceable delegation clause.


                                             14

Jackson.29 The Supreme Court decided that a properly-drafted delegation provision is

nothing more than a narrow “written provision” to “settle by arbitration” any question

about the validity and enforceability of the arbitration agreement.30              Succinctly, a

delegation clause is “a distinct mini-arbitration agreement divisible from the contract in

which it resides – which just so happens also to be an arbitration agreement.”31 Hence,

“the FAA operates on this additional arbitration agreement just as it does on any other,”

and a delegation provision is valid under the FAA “save upon such grounds as exist at

law or in equity for the revocation of any contract.”32

              Rent-A-Center stands for the proposition that 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.

Therefore, 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 successfully challenge the

delegation provision first.

              The take-away rule from Rent-A-Center is this: under the FAA and the

doctrine of severability, where a delegation provision in a written arbitration agreement

              29
                   561 U.S. 63, 130 S.Ct. 2772.

              30
                   561 U.S. at 70, 130 S.Ct. at 2777-78 (quoting 9 U.S.C. § 2).

              31
                   561 U.S. at 85, 130 S.Ct. at 2787 (Stevens, J., dissenting).

              32
                   561 U.S. at 70, 130 S.Ct. at 2777-78 (quoting 9 U.S.C. § 2).



                                               15
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.

              Under this rule, if the trial court finds the delegation provision to be

effective, then the case must be referred to the parties’ arbitrator who can then decide if

the arbitration agreement is invalid, revocable or unenforceable.          Conversely, if the

delegation provision is ineffective on a ground that exists at law or in equity for the

revocation of any contract, then the trial court may examine a challenge to the arbitration

agreement.

              We recognize that this rule seems intricate and complex. However, we

must “respect and appreciate the support of Congress and the Supreme Court for an

arbitration procedure that reduces the costs and delays of civil litigation.”33             Our

application of the FAA must be consistent with the Supreme Court’s interpretations of

that law.34


              33
                   Hayes v. Delbert Servs. Corp., 811 F.3d 666, 668 (4th Cir. 2016).
              34
                  DIRECTV, 136 S.Ct. at 468 (“[T]he ‘Supremacy Clause forbids state
courts to dissociate themselves from federal law because of disagreement with its content
or a refusal to recognize the superior authority of its source’ . . . . The Federal Arbitration
Act is a law of the United States, and [AT&T Mobility LLC v.] Concepcion is an
authoritative interpretation of that Act. Consequently, the judges of every State must
                                                                               (continued . . .)
                                              16

              The facts in Rent-A-Center demonstrate the application of this delegation

provision rubric. An employee, Jackson, filed an employment discrimination suit against

his employer, Rent-A-Center. The employer filed a motion to compel arbitration under

an arbitration agreement.        Furthermore, the employer asserted that the arbitration

agreement had a provision delegating to the arbitrator “exclusive authority to resolve any

dispute relating to the . . . enforceability” of the arbitration agreement.35 At the trial court

level, the employee opposed the motion to compel on the ground that the entire

arbitration agreement was unconscionable and unenforceable. The employee did not

challenge the delegation provision separate from the arbitration agreement. Further, on

appeal to the U.S. Court of Appeals, the employee’s brief simply noted the existence of

the delegation provision while then asserting the entire arbitration agreement was

unconscionable; the employee again “did not contest the validity of the delegation

provision in particular.”36 The employee repeated that argument to the Supreme Court

and argued that the entire arbitration agreement was unconscionable.37

              The Supreme Court determined that “unless Jackson challenged the

delegation provision specifically, we must treat it as valid [under the FAA] . . . and must


follow it. U.S. Const., Art. VI, cl. 2 (“[T]he Judges in every State shall be bound’ by ‘the
laws of the United States’).”).
              35
                Rent-A-Center, 561 U.S. at 66, 130 S.Ct. at 2775. For the text of the
delegation provision, see supra, footnote 27.
              36
                   561 U.S. at 74, 130 S. Ct. at 2780.
              37
                   561 U.S. at 75, 130 S. Ct. at 2781.


                                               17

enforce it . . . leaving any challenge to the validity of the [Arbitration] Agreement as a

whole for the arbitrator.”38 Jackson addressed the “validity of the contract as a whole,”

but failed to “even mention the delegation provision” in his arguments to the trial court.39

On these facts, the Supreme Court concluded that the delegation provision was

enforceable, and that the trial court should have referred Jackson’s arguments about the

unconscionability of the arbitration agreement to an arbitrator.


                                            C.

                             Challenging a Delegation Provision


              To be clear, it is still possible to oppose enforcement of a delegation

provision. The FAA does not require all claims to be sent to arbitration merely because

there is a delegation provision. As the Supreme Court stated, because delegation clauses

and “agreements to arbitrate are severable does not mean that they are unassailable.”40

Severance is merely a speedbump on the road to deliberating the enforceability of the

provision.

              A party seeking to enforce an arbitration clause, or a party resisting

arbitration, must begin any argument with the recognition that arbitration is purely a

matter of contract. In the context of whether the parties have agreed to arbitrate the

merits of a dispute (which is, under one definition, the “arbitrability” of a question), the

              38
                   561 U.S. at 72, 130 S.Ct. at 2779.
              39
                   Id.
              40
                   561 U.S. at 71, 130 S.Ct. at 2778.


                                              18

United States Supreme Court said, “Courts should not assume that the parties agreed to

arbitrate arbitrability unless there is ‘clea[r] and unmistakabl[e]’ evidence that they did

so.”41 Likewise, this Court has found that “parties are only bound to arbitrate those

issues that by clear and unmistakable writing they have agreed to arbitrate,” and that an

“agreement to arbitrate will not be extended by construction or implication.”42 The “clear

and unmistakable” test reflects a “heightened standard” of proof of the parties’

“manifestation of intent.”43 The heightened standard was adopted

              because the question of who would decide the
              unconscionability of an arbitration provision is not one that
              the parties would likely focus upon in contracting, and the
              default expectancy is that the court would decide the matter.
              Thus, the Supreme Court has decreed, a contract’s silence or
              ambiguity about the arbitrator’s power in this regard cannot
              satisfy the clear and unmistakable evidence standard.44

              Questions about the validity, revocability, and enforceability of a provision

delegating a problem with the enforceability or scope of an arbitration clause are resolved

by looking to state contract law. “When deciding whether the parties agreed to arbitrate a

certain matter (including arbitrability), courts generally . . . should apply ordinary state­




              41
                   First Options of Chicago, Inc. v. Kaplan, 514 U.S. at 944, 115 S.Ct. at
1924.
              42
                   Syllabus Point 10, Brown I, 228 W.Va. at 657, 724 S.E.2d at 261.
              43
                   Rent-A-Center, 561 U.S. at 70 n.1, 130 S.Ct. at 2778 n.1.
              44
                 Ajamian v. CantorCO2e, L.P., 203 Cal.App.4th 771, 782, 137
Cal.Rptr.3d 773, 782 (2012) (citations omitted).


                                              19

law principles that govern the formation of contracts.”45          “Nothing in the Federal

Arbitration Act, 9 U.S.C. § 2, overrides normal rules of contract interpretation. Generally

applicable contract defenses—such as laches, estoppel, waiver, fraud, duress, or

unconscionability—may be applied to invalidate an arbitration agreement.”46

              Any generic state-law contract principle may be employed to invalidate a

severed delegation provision within an arbitration agreement; the only caveat is that the

principle cannot be aimed at arbitration agreements alone.47 For example, state contract

law requires a trial court examining the enforceability of a contract provision to weigh the

challenged provision in context, and consider other parts of the contract that relate to,

support, or are otherwise intertwined with the operation of the challenged provision.

Richmond American Homes, 228 W.Va. at 135, 717 S.E.2d at 919. The general tools for

examining contracts are familiar to any first-year law student: ambiguity, coercion,

duress, estoppel, fraud, impracticality, laches, lack of capacity, misrepresentation,

mistake, mutuality of assent, unconscionability, undue influence, waiver, or even lack of

offer, acceptance or consideration. If the contract defense exists under general state

contract law principles, then it may be asserted to counter the claim that an arbitration

agreement or a provision therein binds the parties.

              45
                   First Options, 514 U.S. at 944, 115 S.Ct. at 1924.
              46
                   Syllabus Point 9, Brown I, 228 W.Va. at 657, 724 S.E.2d at 261.
              47
                 See, e.g., Geological Assessment & Leasing v. O’Hara, 236 W.Va. 381,
386, 780 S.E.2d 647, 652 (2015) (circuit court improperly ruled that “state law outright
prohibits the arbitration of claims involving the unauthorized practice of law”).


                                              20

              To summarize, when a party seeks to enforce a delegation provision in an

arbitration agreement against an opposing party, under the FAA there are two

prerequisites for a delegation provision to be effective.      First, the language of the

delegation provision must reflect a clear and unmistakable intent by the parties to

delegate state contract law questions about the validity, revocability, or enforceability of

the arbitration agreement to an arbitrator. Second, the delegation provision must itself be

valid, irrevocable and enforceable under general principles of state contract law.



                                           D.

                                    Applying the Rules


              We now turn to the subject delegation language.           It provides, “The

arbitrator(s) shall determine all issues regarding the arbitrability of the dispute.” After

considering DIRECTV, we believe that this language controls the outcome of this case for

one reason: the doctrine of severability.

               The procedural posture of this case is largely indistinguishable from that

in Rent-A-Center, West, Inc. v. Jackson. Like in Rent-A-Center, the plaintiffs in this case

failed to sever and contest the validity of the delegation language in the arbitration

agreement with particularity.

              In Rent-A-Center, before the trial court, the employer asserted that a

delegation provision required questions about the unconscionability of the arbitration

agreement to be resolved by the arbitrator.          The employee never disputed the

enforceability of the delegation provision, and only challenged the arbitration agreement


                                            21

in its entirety. The same thing occurred before the circuit court in this case. Indeed, the

record is clear in the instant case that the plaintiffs wholly failed to acknowledge the

existence of the delegation language, let alone mount a challenge.

              More importantly, in Rent-A-Center, the employer asserted the delegation

provision twice on appeal, before both the U.S. Court of Appeal and the U.S. Supreme

Court. Both times, the employee ignored the delegation provision and argued that the

arbitration agreement was unconscionable in totality. The same thing occurred in this

case before this Court. In its petition for appeal, Schumacher raised the circuit court’s

failure to address the delegation language as a point of error. In their response brief,

counsel for the plaintiffs ignored Schumacher’s asserted point of error. Counsel for the

plaintiffs made the same arguments as below and said that the arbitration agreement was

unconscionable in totality.

              Before both the circuit court and this Court, the plaintiffs failed to sever the

delegation language and dispute its validity.        Unless the plaintiffs challenged the

delegation language specifically, we must treat it as valid under the FAA and must

enforce it, leaving any challenge to the validity of the arbitration agreement as a whole

for the arbitrator.48    The plaintiffs’ arguments addressed the validity of the arbitration

agreement as a whole, but failed to even mention the delegation language in their

arguments to the circuit court and this Court. On these procedural facts, we find that the

delegation language within the parties’ arbitration agreement is enforceable, and that the

              48
                   Rent-A-Center, 561 U.S. at 72, 130 S.Ct. at 2779.


                                              22

circuit court should have referred the plaintiffs’ arguments about the enforceability of the

arbitration agreement to an arbitrator.



                                          IV.

                                      CONCLUSION


              We reverse the circuit court’s March 6, 2014, order, and remand the case to

the circuit court with directions to refer the plaintiffs’ challenge to the enforceability of

the arbitration clause to an arbitrator, in accordance with the parties’ contract.

                                                                     Reversed and remanded.




                                              23

