                               FOURTH DIVISION
                               ELLINGTON, P. J.,
                            BRANCH and MERCIER, JJ.

                     NOTICE: Motions for reconsideration must be
                     physically received in our clerk’s office within ten
                     days of the date of decision to be deemed timely filed.
                                 http://www.gaappeals.us/rules


                                                                   September 28, 2016




In the Court of Appeals of Georgia
 A16A1318. SUNTRUST BANK v. LILLISTON et al.

       BRANCH, Judge.

       A party to a contractual arbitration clause may waive arbitration by acting

inconsistently with that right to the prejudice of the other party. In this case, the

defendant litigated a case through discovery and placement of the case on the trial

calendar without asserting its contractual right to arbitrate, but the plaintiffs dismissed

their case before trial and filed a renewal action months later. In this case of first

impression, we granted SunTrust’s application for interlocutory appeal to decide

whether the defendant’s actions in the first litigation waived its right to arbitrate the

renewal action. For the reasons that follow, we affirm the trial court’s determination

that SunTrust waived its right to arbitrate.
      For the purpose of the limited inquiry before us, the parties agree to the

essential facts.1 The parties agree that the case arose out of two loan transactions and

a “SWAP Agreement” associated with financing for one or more automobile

dealerships. In 2001, SunTrust Bank loaned approximately $500,000 to L-T

Adventures, Inc. (LTA) in a transaction that did not include an arbitration provision.

In 2005, SunTrust loaned approximately $2 million to Jedon Lilliston (a co-owner of

LTA) and her former husband in a transaction that was guaranteed by LTA. And, in

connection with this second loan, Suntrust, Lilliston and her former husband entered

into an “ISDA Master Agreement,” also known as the “Swap Agreement.” The Swap

Agreement contains an arbitration clause that provides for mediation of disputes

arising thereunder and, if mediation is unsuccessful, “any party may demand

arbitration.”

      A dispute regarding charged and collected interest eventually arose between

the parties regarding both loan transactions and the Swap Agreement, and on April

9, 2013, Jedon Lilliston and LTA filed suit against SunTrust in the State Court of

Chatham County. The case was transferred to the Superior Court of Fulton County

      1
        See Court of Appeals Rule 25 (b) (1) (“Except as controverted [by the
appellee], appellant’s statement of facts may be accepted by this Court as true.”


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on August 8, 2014. On January 15, 2015, over 21 months after filing the complaint,

the plaintiffs voluntarily dismissed their action. SunTrust never demanded arbitration

in that action. On June 19, 2015, Lilliston and LTA filed the present renewal action

in the Superior Court of Fulton County. SunTrust answered and soon filed a motion

to compel arbitration based on the arbitration provision contained in the Swap

Agreement.

      The trial court denied SunTrust’s motion to compel arbitration, and in so doing,

it found that the Swap Agreement contained a valid agreement to arbitrate between

the parties, that some of the claims at issue in the suit were subject to arbitration, but

that SunTrust waived its right to compel arbitration based on its actions in the original

litigation. The court found that SunTrust participated in the original litigation for

more than a year and a half without raising the issue of arbitration, that SunTrust

participated in discovery and filed a motion for summary judgment in the original

action, and that the original action had been placed on the trial calendar before the

plaintiff dismissed it.2 The court concluded therefore that SunTrust had “acted

      2
        SunTrust does not dispute these factual findings. And although the record of
the original action has not been included in the record before us, it is well-established
that a trial court “may take judicial notice of records in the same court.” In the
Interest of J. P. V., 261 Ga. App. 194, 196 (2) (582 SE2d 170) (2003) (punctuation
and footnote omitted). Cf. Belcher v. Folsom, 258 Ga. App. 191, 192 (573 SE2d 447)

                                            3
inconsistently with the right to arbitrate” and that “[t]he delay and cost associated

with conducting discovery prejudiced the Plaintiffs.” SunTrust appeals this ruling.

      “The standard of review of a trial court’s ruling on a motion to compel

arbitration is whether the trial court was correct as a matter of law.” Order Homes v.

Iverson, 300 Ga. App. 332, 333 (685 SE2d 304) (2009) (punctuation and footnote

omitted).

      The parties do not dispute that the Federal Arbitration Act governs the

enforceability of their arbitration agreement. See 9 U.S.C. § 2. The relevant provision

of the Act provides as follows:

             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 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.




(2002) (where “the renewed action was filed in the same court as the original action,
the trial court could take judicial notice of the physical record from the original action
in determining if the renewed action met the tests for renewal.”).

                                            4
9 U.S.C. § 2. The language of this code section makes clear that arbitration is favored

under the Act. See AT&T Mobility v. Concepcion, 563 U. S. 333, 339 (II) (131 SCt

1740, 179 LE2d 742) (2011) (“We have described this provision as reflecting both

a ‘liberal federal policy favoring arbitration,’ and the ‘fundamental principle that

arbitration is a matter of contract[.]’”) (citations omitted). But as explained by the

Eleventh Circuit, “despite the strong policy in favor of arbitration, a party may, by its

conduct, waive its right to arbitration.” S & H Contractors v. A. J. Taft Coal Co., 906

F2d 1507, 1514 (III) (11th Cir. 1990) (citations omitted). More specifically,

      [A] party that substantially invokes the litigation machinery prior to
      demanding arbitration may waive its right to arbitrate. A party has
      waived its right to arbitrate if, under the totality of the circumstances,
      the party has acted inconsistently with the arbitration right, and, in so
      acting, has in some way prejudiced the other party[.]


Id. (citations and punctuation omitted). Thus, the trial court correctly followed well-

established law in holding that a party to an arbitration clause may waive its

contractual right to arbitrate by acting inconsistently with that right to the detriment

of the other party to the contract.

      On appeal, SunTrust argues that the trial court erred as a matter of law because

a renewal action under OCGA § 9-2-61 is a de novo action and that, as this Court has

                                           5
held, “[a] defendant is not estopped from raising a proper defense in a renewal action

simply because that defense was not raised in the original action.” Adams v.

Gluckman, 183 Ga. App. 666 (1) (359 SE2d 710) (1987); Fine v. Higgins Foundry

& Supply Co., 201 Ga. App. 275, 276-277 (1) (b) (410 SE2d 821) (1991) (same). On

this point, SunTrust relies heavily on Hornsby v. Hancock, 165 Ga. App. 543 (301

SE2d 900) (1983), in which a defendant did not object to venue in the plaintiff’s first

malpractice action, which the plaintiff dismissed when the case was called for trial.

Id. at 543. In response to the plaintiff’s later renewed action in the same court, the

defendant moved to dismiss for lack of venue. Id. The trial court granted the motion,

and on appeal, this Court affirmed and held that because the second action was a

renewal of the first, it was in effect a de novo action during which the defendant

could assert defenses not raised in the original action. Id. at 544. Suntrust concludes

that because the existence of an agreement to arbitrate is a defense similar to lack of

venue, it should be allowed to demand arbitration in the renewal action despite not

raising it in the original action below.

       Despite SunTrust’s argument to the contrary, Hornsby is in fact consistent with

the trial court’s ruling. In the present action, the trial court did not hold that SunTrust

was barred from demanding arbitration in the renewal action simply because it failed

                                            6
to raise the issue in the original action. Rather, in the renewal action the court

considered SunTrust’s demand for arbitration but found that SunTrust had waived its

right to arbitrate by acting inconsistently with that right during the original action.

The trial court’s reasoning recognizes the possibility that if the original action had

proceeded differently, SunTrust might not have waived its right to arbitrate in a

renewal action. For example, if the plaintiff had dismissed the original action before

SunTrust acted inconsistently with its right to arbitrate, SunTrust would not have

waived that right in the renewal action. Or if SunTrust’s actions in the first action,

although inconsistent with its right to arbitrate, did not cause any prejudice to the

plaintiffs, then SunTrust would not have waived its right to arbitrate in the renewal

action. Thus, Hornsby supports the trial court’s decision because Hornsby did not bar

SunTrust from raising arbitration in the renewal action. Rather, its motion to compel

arbitration was denied for an independent reason, namely waiver.

      “The question of what constitutes a waiver of the right of arbitration depends

on the facts of each case.” USA Payday Cash Advance Center # 1 v. Evans, 281 Ga.

App. 847, 850 (637 SE2d 418) (2006) (punctuation and footnote omitted). Here, the

trial court concluded that SunTrust had waived its right to arbitration by participating

in discovery and by filing a motion for summary judgment in the original litigation

                                           7
without raising the issue of arbitration for more than a year and a half causing the

case to end up on the trial calendar. SunTrust does not dispute these findings of fact.

The trial court also found that “the delay and cost associated with conducting

discovery prejudiced the [appellees].” See Morewitz v. West of England Ship Owners

Mut. Protection & Indem. Assoc., 62 F3d 1356, 1366 (II) (C) (4) (11th Cir. 1995)

(“Prejudice has been found in situations where the party seeking arbitration allows

the opposing party to undergo the types of litigation expenses that arbitration was

designed to alleviate.”) (citations omitted). As held in USA Payday, “we cannot

overturn the factual findings underlying the trial court’s conclusion because based on

the record, we cannot say that they are clearly erroneous.” USA Payday, 281 Ga. App.

at 851 (footnote omitted). Given that SunTrust does not challenge the trial court’s

underlying factual findings and because the trial court correctly held that a party may

waive its right to arbitrate a renewal action by taking actions in the corresponding

original action that prejudice that opposing party, we find no error in the trial court’s

denial of SunTrust’s motion to compel arbitration.

      Judgment affirmed. Ellington, P. J., and Mercier, J., concur.




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