          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                  January 2017 Term
                                  _______________

                                    No. 16-0657                           FILED
                                  _______________                      June 13, 2017
                                                                          released at 3:00 p.m.
                                                                        RORY L. PERRY II, CLERK
                                 JOHN D. WILLIAMS                     SUPREME COURT OF APPEALS
                                                                           OF WEST VIRGINIA
                               Plaintiff Below, Petitioner

                                           v.

                KENNETH L. TUCKER and DEBORAH A. TUCKER

                       Defendants Below, Respondents


       ____________________________________________________________

                    Appeal from the Circuit Court of Putnam County

                       The Honorable Phillip M. Stowers, Judge

                               Civil Action No. 16-C-46


                             REVERSED AND REMANDED


       ____________________________________________________________

                               Submitted: May 23, 2017

                                 Filed: June 13, 2017


Stuart A. McMillan                              James B. Atkins
Daniel J. Cohn                                  Atkins & Ogle Law Offices, LC
Bowles Rice LLP                                 Buffalo, West Virginia
Charleston, West Virginia                       Counsel for the Respondents
Counsel for the Petitioner


JUSTICE WALKER delivered the Opinion of the Court.

CHIEF JUSTICE LOUGHRY concurs and reserves the right to file a separate opinion.

JUSTICE WORKMAN concurs and reserves the right to file a separate opinion.
                             SYLLABUS BY THE COURT



              1.     “The denial or granting of an injunction by a trial court is

discretionary and will not be disturbed upon an appeal unless there is an absolute right for

an injunction or some abuses shown in connection with the denial or granting thereof.”

Syllabus Point 6, West Virginia Bd. of Dental Exam’rs v. Storch, 146 W. Va. 662, 122

S.E.2d 295 (1961).



              2.     “Where the issue on appeal from the circuit court is clearly a

question of law or involving an interpretation of a statute, we apply a de novo standard of

review.” Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d

415 (1995).



              3.     “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, 565 U.S. 530 (2012)).




                                             i
              4.      In the absence of an agreement to the contrary, waiver of a

contractual right to arbitration is a threshold question of enforceability to be determined

by a court, not an arbitrator.



              5.      “The common-law doctrine of waiver focuses on the conduct of the

party against whom waiver is sought, and requires that party to have intentionally

relinquished a known right. A waiver may be express or may be inferred from actions or

conduct, but all of the attendant facts, taken together, must amount to an intentional

relinquishment of a known right. There is no requirement of prejudice or detrimental

reliance by the party asserting waiver.” Syllabus Point 2, Parsons v. Halliburton Energy

Services, Inc., 237 W. Va. 138, 785 S.E.2d 844 (2016).



              6.      “A party to a binding, irrevocable arbitration cannot unilaterally

withdraw from participation in the arbitration after it has begun. If a party to a binding

irrevocable arbitration unilaterally withdraws from the arbitration, the claims or issues

raised by the withdrawing party are abandoned, thereby precluding them from being

pursued in any subsequent arbitration or civil action.” Syllabus Point 1, Crihfield v.

Brown, 224 W. Va. 407, 686 S.E.2d 58 (2009).




                                            ii
WALKER, Justice:

              Petitioner John D. Williams (“Mr. Williams”) appeals the June 17, 2016

order of the Circuit Court of Putnam County denying his motion for a preliminary and

permanent injunction to prohibit Respondents Kenneth L. Tucker and Deborah A. Tucker

(“the Tuckers”) from pursuing their claims through arbitration. Mr. Williams alleges the

circuit court erred by abdicating its authority to consider questions of waiver and estoppel

to an arbitrator. Mr. Williams further alleges that the court erred in failing to find that the

arbitration was barred as a matter of law because (1) it constitutes an impermissible

collateral attack on a prior award in favor of Mr. Williams; and (2) the Tuckers waived

their right to arbitration. Upon consideration of the parties’ briefs, oral argument,1 the

submitted record and pertinent authorities, we reverse the circuit court’s order.



                I.     FACTUAL AND PROCEDURAL BACKGROUND

              The Tuckers began investing with Mr. Williams’s investment firm in

October 2007. At the outset of the professional relationship between Mr. Williams and

the Tuckers, the parties entered into an Asset Management Agreement (“Agreement”) on

September 19, 2007.      Among other things, the Agreement specifically provides for

arbitration of disputes between the parties as follows:




       1
        The Tuckers (by counsel) did not comply with the deadline to file their brief and
moved this Court for leave to file their brief out-of-time. Their motion was granted, but
they were deemed ineligible to participate in oral argument as a sanction. W. Va. R.
App. P. 5(e) and 10 (j).
                                              1

              Disputes – This agreement contains a provision which
              requires that all claims arising between the parties in respect
              to this Agreement shall be resolved through arbitration.

              Client is aware that:

              1. Arbitration is final and binding on all parties.
              2. The parties are waiving their right to seek remedies in
              court, including the right to a jury trial.
              3. Pre-arbitration discovery is generally more limited than
              and potentially different in form and scope than court
              proceedings.
              4. The Arbitration Award is not required to include factual
              finding or legal reasoning and any party’s right to appeal or to
              seek modification of a ruling by the arbitrators is strictly
              limited.
              5. The panel of arbitrators will typically include a minority of
              arbitrators who were or are affiliated with the securities
              industry.

              Unless unenforceable due to applicable federal or state law,
              any controversy arising out of or related to any transaction
              with Advisor or its officers, directors, agents, or employees,
              or to this agreement or the breach thereof, shall be settled by
              arbitration in accordance with the rules then in effect of the
              American Arbitration Association. Judgment upon any award
              rendered by the arbitrators may be entered in any court
              having jurisdiction thereof.


                  In July 2009, the Tuckers transferred their account to a self-directed online

investment platform, by which time their account balance had declined twenty-nine and

one-half percent. Mr. Williams faults the economic crisis for the decline and asserts that

the decline is less than or on par with other mutual funds across the market during this

time period. On February 3, 2011, the Tuckers commenced an arbitration alleging that

Mr. Williams had breached their contract and made unsuitable investments contributing

to the decline.

                                                2

              Although the Agreement required binding arbitration in accordance with

the rules of the American Arbitration Association (“AAA”) in the event of a dispute

between the parties, the Tuckers instituted arbitration proceedings against Mr. Williams

before the Financial Industry Regulatory Authority, Inc. (“FINRA”).2             Before Mr.

Williams responded to the FINRA arbitration demand, the Tuckers withdrew their

arbitration demand. By letter dated April 5, 2011, FINRA acknowledged withdrawal of

the claims. However, the dispute remained a matter of record relating to Mr. Williams’s

registration with the Central Registration Depository (“CRD”).3



              Mr. Williams then instituted expungement proceedings by filing his own

arbitration demand with FINRA on March 31, 2011. The Tuckers consented to FINRA

jurisdiction, but declined to exercise their right to participate in the proceedings and did

       2
         FINRA is the successor to the National Association of Securities Dealers, Inc.
(“NASD”), a self-regulatory organization established under the federal Securities
Exchange Act of 1934, 15 U.S.C. §§ 78a through -78qq (2012). “FINRA is dedicated to
investor protection and market integrity through effective and efficient regulation of
broker-dealers.” FINRA, http://finra.org/about (last visited June 2, 2017). FINRA is
vested with the authority to create rules that govern its members and has regulatory
oversight over “all securities firms that do business with the public.” 72 Fed. Reg. 42170
(2007).
       3
         The Central Registration Depository (“CRD”) is an on-line registration and
licensing system for the United States securities industry, state and federal regulators, and
self-regulatory organizations administered by FINRA.                   The CRD contains
“administrative information (personal, organizational, employment history, registration
and other information) and disclosure information (criminal matters, regulatory
disciplinary actions, civil judicial actions, financial information, and information relating
to customer disputes)” from a variety of sources. See NASD Notice of Proposed Rule
Change,      SR–NASD–2002–168             (filed    Nov.     18,    2002)     available     at
https://www.finra.org/sites/default/files/RuleFiling/p001015.pdf (last visited June 2,
2017).

                                              3

not oppose expungement. The arbitration panel rendered an arbitration award in favor of

Mr. Williams. Pursuant to the Agreement and FINRA rules, Mr. Williams filed an action

in the Circuit Court of Kanawha County and moved the court to confirm the FINRA

arbitration panel’s award in his favor. The Tuckers accepted service, but did not file a

responsive pleading or otherwise oppose the expungement. An Agreed Order Granting

Motion to Confirm Arbitration Award was subsequently entered by the Circuit Court of

Kanawha County on January 27, 2012.



             Four years later, on January 10, 2016, the Tuckers filed an arbitration

demand with the AAA asserting the same claims against Mr. Williams as in their original

FINRA arbitration demand.      Mr. Williams demanded withdrawal of the arbitration

proceeding and the Tuckers refused. Mr. Williams then filed a motion in the Circuit

Court of Putnam County for a preliminary and permanent injunction to prevent the

Tuckers from pursuing a second arbitration.      Mr. Williams argued that the second

arbitration was barred because the claims were precluded as an impermissible collateral

attack on the prior FINRA arbitration award that had been confirmed by order of the

Circuit Court of Kanawha County. Mr. Williams also argued that the Tuckers had

waived their right to arbitration. The Tuckers responded that they had not waived their

right to arbitrate, and, in any case, the preclusive effect of the prior judgment and

determination of whether they waived their rights to arbitrate are questions for an

arbitrator, not the court. The court below denied the injunction and ordered arbitration,



                                           4

reasoning that Mr. Williams’s defenses to the arbitration were themselves arbitrable. It is

from this Order that Mr. Williams appeals.




                             II.    STANDARD OF REVIEW

              We consider in this appeal the circuit court’s disposition of Mr. Williams’s

request for injunctive relief, which resulted in the circuit court compelling arbitration.

We have held that “[t]he denial or granting of an injunction by a trial court is

discretionary and will not be disturbed upon an appeal unless there is an absolute right for

an injunction or some abuses shown in connection with the denial or granting thereof.”

Syl. Pt. 6, West Virginia Bd. of Dental Exam’rs v. Storch, 146 W. Va. 662, 122 S.E.2d

295 (1961). Here, however, we must maintain a two-pronged standard of review because

the denial of injunctive relief rested on a question of law. In this regard, “[w]here the

issue on appeal from the circuit court is clearly a question of law or involving an

interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1, Chrystal

R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415, (1995). Accordingly, the circuit

court’s order denying the injunction is reviewed for an abuse of discretion, but we

examine de novo the underlying legal conclusions on which the denial is based. With

these standards in mind, we consider the arguments of the parties.



                                    III.   DISCUSSION

              It is undisputed that the parties entered into a valid agreement to arbitrate

their disputes and that the Tuckers’ claims fall within the scope of the arbitration
                                             5

agreement. That said, the questions presented on appeal are whether the defenses of

waiver and estoppel are to be determined by the court and, if so, whether the court should

have enjoined the arbitration on the grounds of waiver or estoppel. We will address each

in turn.



A.     Is Waiver Determined by the Court or an Arbitrator?

              We first recognize that arbitration is purely a matter of contract. State ex

rel. Barden & Robeson Corp. v. Hill, 208 W. Va. 163, 168, 539 S.E.2d 106, 111 (2000).

It is undisputed that Mr. Williams and the Tuckers contracted to submit their disputes to

arbitration. However, the Tuckers contend that whether they waived their contractual

right to arbitrate is a matter to be determined by the arbitrator. We disagree.



              We consistently have recognized the role of the court in evaluating the

enforceability of an arbitration agreement under state contract law.        In Schumacher

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

observed:


                      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?




                                             6

Id. at 388, 787 S.E.2d at 659 (emphasis added). We find that the issue of waiver before

us in this appeal relates to the first threshold question of enforceability. Regarding the

application of state contract law, we have observed, “[n]othing 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.” Syl. Pt. 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, 565 U.S. 530 (2012) (emphasis added). See

also Geological Assessment & Leasing v. O’Hara, 236 W. Va. 381, 387, 780 S.E.2d 647,

653 (2015) (“[I]f the contract defense exists under general common law principles, then it

may be asserted to counter the claim that a . . . provision binds the parties.”).


              We discussed waiver in the context of arbitration in Parsons v. Halliburton

Energy Services, Inc., 237 W. Va. 138, 785 S.E.2d 844 (2016):


                      Stated differently, “[t]he 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.” . . .
              “Thus, the question of whether there has been waiver in the
              arbitration agreement context should be analyzed in much the
              same way as in any other contractual context.”



       Id. at 147, 785 S.E.2d at 853 (citations omitted). Based on that reasoning, we held

in Parsons that “[t]he right to arbitration, like any other contract right, can be waived.”

Id. at Syl. Pt. 6, in part. Our law is clear that waiver is a general contract defense that

may be applied to invalidate a contract. We now hold that in the absence of an agreement
                                              7

to the contrary, waiver of a contractual right to arbitration is a threshold question of

enforceability to be determined by a court, not an arbitrator.4 Having determined that the

issue of waiver below should have been determined by the court and being fully apprised

of the facts and arguments, we now turn to our state contract law relating to whether the

Tuckers waived their right to arbitrate.


B.       Waiver of the Right to Arbitrate

                  As we discussed in Parsons, “the question of whether there has been

waiver in the arbitration agreement context should be analyzed in much the same way as

in any other contractual context. The essential question is whether, under the totality of

the circumstances, the defaulting party has acted inconsistently with the arbitration right.”

Parsons, 237 W. Va. at 147, 785 S.E.2d at 853 (quoting Nat’l Found. for Cancer

Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C. Cir. 1987)). “To effect

a waiver, there must be evidence which demonstrates that a party has intentionally

relinquished a known right.” Syl. Pt. 2, in part, Ara v. Erie Ins. Co., 182 W. Va. 266,

267, 387 S.E.2d 320, 321 (1989). Waiver “may be made by an express statement or

agreement, or it may be implied from the conduct of the party who is alleged to have

waived a right.” Parsons, 237 W. Va. at 144, 785 S.E.2d at 850. Further, we have held:



                        The common-law doctrine of waiver focuses on the
                  conduct of the party against whom waiver is sought, and

         4
           There is no delegation provision in the Agreement. In the absence of a “clear and unmistakable”
delegation provision evincing that the parties agreed to arbitrate arbitrability, the default expectancy is that a court
resolves questions of arbitrability. See Schumacher Homes of Circleville, Inc. v. Spencer, 237 W. Va. 379, 391, 787
S.E.2d 650, 662 (2016).

                                                           8

              requires that party to have intentionally relinquished a known
              right. A waiver may be express or may be inferred from
              actions or conduct, but all of the attendant facts, taken
              together, must amount to an intentional relinquishment of a
              known right. There is no requirement of prejudice or
              detrimental reliance by the party asserting waiver.

Syl. Pt. 2, Parsons. Thus, “[t]here must be first, the existence of the right; second,

knowledge of the existence of such right; and third, voluntary intention to relinquish.”

Hoffman v. Wheeling Sav. & Loan Ass’n, 133 W. Va. 694, 713, 57 S.E.2d 725, 735

(1950). Applied in the arbitration context:


                      To establish waiver of a contractual right to arbitrate,
              the party asserting waiver must show that the waiving party
              knew of the right to arbitrate and either expressly waived the
              right, or, based on the totality of the circumstances, acted
              inconsistently with the right to arbitrate through acts or
              language.

Syl. Pt. 6, in part, Parsons.


              As discussed above, there is no dispute that the Tuckers had the right to

arbitrate pursuant to the Agreement. Relating to knowledge of the right, we have held

that it may be actual or constructive. Id. at 147, 785 S.E.2d at 853. Further, we have

noted that “it does not seem unduly onerous to charge the parties to a contractual dispute

with constructive knowledge of the terms of the underlying contract” and, likewise, that

“a party should be deemed to have knowledge of the terms of agreements that he has

executed.” Id. (quoting Thomas J. Lilly, Jr., Participation in Litigation as a Waiver of

the Contractual Right to Arbitrate: Toward a Unified Theory, 92 Neb. L. Rev. 86, 122

(2013); Bros. Jurewicz, Inc. v. Atari, Inc., 296 N.W.2d 422, 429 (Minn. 1980)). Thus, the

                                              9

execution of the Agreement by the Tuckers imputes to them constructive knowledge of

the terms of the Agreement. Moreover, the institution of arbitration proceedings by the

Tuckers with FINRA in 2011, evinces, at minimum, constructive knowledge of the

existence of the right to arbitrate, albeit in an improper forum.



               We next consider, as we did in Parsons, whether a party’s participation in

other proceedings constituted waiver of the right to arbitrate. In Parsons, the plaintiff

filed a civil action in circuit court against his employer under the West Virginia Wage

Payment and Collection Act5 for failing to pay final wages in a timely fashion. Parsons

at 142-43, 785 S.E.2d at 848-49. The plaintiff’s employment contract, however, provided

that all disputes with the defendant would be “finally and conclusively resolved through

arbitration . . . instead of through trial before a court.” Id. at 142, 785 S.E.2d at 848. The

defendant employer repeatedly sought extensions to file a responsive pleading and

volunteered to produce class-wide discovery before moving to compel arbitration. Id. at

144, 785 S.E.2d at 850. The plaintiff contended that the defendant’s participation in

litigation served to waive the right to arbitrate.   Id. We disagreed, reasoning that the

defendant had made no formal, substantive response to any of the plaintiff’s requests,

neither party had formalized and filed a written stipulation agreeing to an enlargement of

time to respond pursuant to Rule 6(b) of the West Virginia Rules of Civil Procedure, and

the defendant’s first filing with the circuit court was a motion to dismiss that clearly

asserted the right to arbitration. Id. at 148-149, 785 S.E.2d at 854-55.

       5
           W. Va. Code §§21–5–1 to –18.
                                             10

              The facts in the case before us differ from those in Parsons in several

respects. First, we are not analyzing the effect of a party participating in litigation on the

right to arbitrate, but rather the effect of instituting a prior arbitration on the right to

arbitrate. Second, the attendant facts and circumstances vary drastically concerning the

amount and type of participation.



              Relating to the first incongruity, we note that the analysis is much the same,

but call attention to it here because the facts below add to the conclusion that the Tuckers

acted inconsistently with their right to arbitrate under the Agreement despite having

actually asserted their claims in arbitration. As discussed above, the parties’ contract

controls their respective rights and liabilities. The Agreement dictated that the Tuckers

had the right to have their issues resolved in arbitration pursuant to the AAA. The

Tuckers chose instead to pursue their claims in a different forum when they filed their

claim with FINRA.



              Mr. Williams, as a FINRA member, is required to abide by FINRA’s rules,

including its arbitration provisions. FINRA’s arbitration rules provide that if “requested

by the customer” a FINRA member must arbitrate a dispute that “arises in connection

with [their] business activities” under the FINRA Rules. FINRA R. 12200. While Mr.

Williams, by virtue of being a FINRA member, had a default obligation to arbitrate with

the Tuckers under the FINRA Rules, the parties superseded and modified that obligation

through contract. See, e.g., Goldman, Sachs & Co. v. City of Reno, 747 F.3d 733, 741

                                             11

(9th Cir. 2014) (“[A] contract between the parties can supersede the default obligation to

arbitrate under the FINRA Rules.”); UBS Fin. Servs. v. Carilion Clinic, 706 F.3d 319,

328 (4th Cir. 2013) (“[T]he obligation to arbitrate under FINRA Rule 12200 can be

superseded and displaced by a more specific agreement by the parties.”). Thus, one

forum is to the exclusion of the other: the Tuckers did not have dual rights to arbitrate

under both FINRA and the AAA. The Tuckers initiated proceedings under FINRA,

withdrew their complaint, and did not oppose expungement or otherwise participate in

FINRA’s determination of the merits of their claim. Moreover, the Tuckers signed an

agreed order expunging their claims against Mr. Williams which was entered by the

Circuit Court of Kanawha County. The Tuckers’ abandonment of their claims in the

forum they improperly chose demonstrates conduct inconsistent with their right to

arbitrate under the AAA. We have held:


                     A party to a binding, irrevocable arbitration cannot
             unilaterally withdraw from participation in the arbitration
             after it has begun. If a party to a binding irrevocable
             arbitration unilaterally withdraws from the arbitration, the
             claims or issues raised by the withdrawing party are
             abandoned, thereby precluding them from being pursued in
             any subsequent arbitration or civil action.



Syl. Pt. 1, Crihfield v. Brown, 224 W. Va. 407, 686 S.E.2d 58 (2009) (emphasis added).

In Crihfield, the parties agreed to arbitrate under the AAA, which, we explained, does not

have a rule permitting the unilateral withdrawal of a party in an arbitration. Id. at 412,




                                           12

686 S.E.2d at 63. We further explained the policy perspective of barring a second

arbitration as follows:


                      To hold otherwise and to give [the plaintiff] yet
              another bite at the apple would be to place the whole system
              of arbitration in peril. The case law is clear that irrevocable
              arbitration is just that—irrevocable. To allow a party to
              simply walk away from a binding, irrevocable arbitration with
              no consequence defeats the purpose of arbitration and is
              unduly prejudicial to the other parties to the arbitration who
              are trying to get the matter resolved. There simply is no basis
              for allowing a party who unilaterally withdraws from a
              binding, irrevocable arbitration to reinitiate the process that
              the party voluntarily chose to abandon.


Id. at 413, 686 S.E.2d at 64.



              Here, the Agreement specifically states that the parties will arbitrate

disputes under the AAA rules and further states that “[a]rbitration is final and binding on

all parties.” While FINRA may permit withdrawal of a complaint without prejudice, Mr.

Williams did not consent to be governed by FINRA Rules for the arbitration of their

disputes,6 nor did the parties’ agree that FINRA rules would override their intent to make

any arbitration final, binding and irrevocable pursuant to the AAA. Rather, Mr. Williams

was saddled with operating within FINRA’s jurisdiction once the Tuckers had filed their

claims in that forum in order to expunge his record. We find our reasoning in Crihfield

equally applicable to the facts before us and decline to allow the Tuckers to reinitiate the


       6
          We speak here only to the Tuckers’ initial arbitration demand and not to
subsequent expungement proceedings initiated by Mr. Williams. Of course, outside of the
instant context, Mr. Williams, as a FINRA member, is subject to FINRA Rules.
                                            13

arbitration process under the AAA after having voluntarily abandoned their claims in

arbitration under FINRA.



               Being represented by counsel, the Tuckers are assumed to have been

advised of the implications of the expungement proceedings, i.e., that their claims would

be substantively reviewed by a panel of FINRA arbitrators and affirmative factual

findings made in order to determine whether the circumstances met one of the grounds

for expungement. See FINRA R. 12805; 2080. The Tuckers were provided with notice

of the hearing so as to present their claims against Mr. Williams and defenses to the

expungement of his record with the CRD. The Tuckers not only declined to participate in

the expungement proceedings, but also explicitly stated they did not oppose the

expungement.     Further, the Tuckers signed the Agreed Order Granting Motion to

Confirm Arbitration Award entered by the Circuit Court of Kanawha County. Viewed

together, the totality of the circumstances demonstrates the Tuckers waived their right to

pursue any future arbitration under the Agreement. 7




      7
         In Parsons, we discussed that a party need not show detrimental reliance to
effect a waiver and differentiated the concept of waiver from that of estoppel. See
Parsons, 237 W. Va. at 145, 785 S.E.2d at 851 (“the distinction between the common law
doctrines of estoppel and waiver is simple: estoppel requires proof of prejudice or
detrimental reliance; waiver does not. . . . ‘the terms “waiver” and “estoppel” have often
been used without careful distinction, and thereby abused and confused.’”) (citations
omitted). The facts before us present not only a waiver through conduct, but an
inducement on behalf of another party to institute expungement proceedings. However,
because we find that the Tuckers waived their right to arbitrate through their own
conduct, we need not analyze whether the Tuckers would have been estopped from
                                           14

                                   IV.    CONCLUSION

             In accordance with our resolution of the dispositive issues herein raised, we

reverse the June 17, 2016 Order of the Circuit Court of Putnam County, and remand for

the entry of an order enjoining the Tuckers from pursuing further arbitration and for any

other proceedings consistent with this opinion.



                                                                Reversed and Remanded.




pursuing a second arbitration. Likewise, because we hold that the Tuckers waived their
right to arbitrate, we need not consider the remaining assignments of error.


                                            15
