SunTrust Bank v. Lilliston, 302 Ga. 840

SunTrust Bank made a loan in 2001 to L‑T Adventures (no arbitration clause). In 2005 SunTrust entered a separate transaction with Jedon Lilliston that included an ISDA Swap Agreement containing an arbitration clause allowing "any party [to] demand arbitration."
Lilliston and L‑T Adventures sued SunTrust in April 2013 over interest charges tied to both transactions; SunTrust participated in the original litigation (discovery, summary judgment motion) but did not demand arbitration.
Plaintiffs voluntarily dismissed the 2013 suit in January 2015.
Plaintiffs filed a renewal action under OCGA § 9‑2‑61(a) in June 2015; SunTrust then moved to compel arbitration based on the Swap Agreement.
The trial court denied the motion to compel, finding SunTrust had waived arbitration by its conduct in the original suit; the Court of Appeals affirmed.
The Georgia Supreme Court granted certiorari and reversed, holding a renewal action under OCGA § 9‑2‑61(a) is a de novo action and prior conduct in the dismissed original suit cannot be used to find waiver in the recommenced action.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a defendant’s conduct in an original (dismissed) action can establish waiver of the right to demand arbitration in a renewal action under OCGA § 9‑2‑61(a)	SunTrust’s prior participation in the original suit prejudiced plaintiffs and therefore SunTrust waived arbitration	Waiver must be judged based on the renewal action because a § 9‑2‑61 recommenced suit is de novo; prior conduct in the dismissed case is irrelevant	Reversed: waiver cannot be predicated on conduct in the original, dismissed action; analysis must focus on the renewal action

S & H Contractors v. A.J. Taft Coal Co., 906 F.2d 1507 (11th Cir. 1990) (party may waive arbitration by conduct invoking litigation machinery and prejudicing the other side)
Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) (FAA reflects a liberal federal policy favoring arbitration; doubts resolved in favor of arbitration)
Cleveland v. Skandalakis, 268 Ga. 133 (1997) (renewal under § 9‑2‑61 is de novo, not a continuation of the original action)
Doctor’s Associates v. Casarotto, 517 U.S. 681 (1996) (state treatment of arbitration defenses must respect federal arbitration law)
Hornsby v. Hancock, 165 Ga. App. 543 (1983) (§ 9‑2‑61 tolls the statute of limitations and allows a recommenced action to proceed independently)
Price v. Drexel Burnham Lambert, 791 F.2d 1156 (5th Cir. 1986) (arbitration rights, like other contractual rights, may be waived by conduct)