John D. Williams v. Kenneth L. and Deborah A. Tucker , 239 W. Va. 395 ( 2017 )

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?
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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
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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