SunTrust Bank v. Lilliston

Summary

The Supreme Court of Georgia held that a renewal action under OCGA § 9-2-61(a) is a de novo action rather than a continuation of the original litigation. Accordingly, a party’s conduct in the original action could not establish waiver of the right to compel arbitration in the renewal action, and the court reversed the judgment affirming denial of SunTrust’s motion to compel arbitration.

Holdings

1. A party's conduct in the original action cannot establish waiver of the right to demand arbitration in a renewal action because the renewal action is a new, de novo action.
2. The right to arbitrate is an affirmative defense in Georgia and may be waived by conduct, but waiver must be assessed based on conduct in the renewal action rather than conduct in the dismissed original action.

Questions Presented

1. Whether a party's conduct in an original action may waive its right to demand arbitration in a renewal action filed under OCGA § 9-2-61(a).
2. Whether a renewal action under OCGA § 9-2-61(a) must be treated as a de novo action such that claims and defenses are evaluated based on events occurring after refiling.

Disposition

reversed