FOURTH DIVISION

DILLARD, P. J.,

BROWN and PADGETT, 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.

https://www.gaappeals.us/rules

May 29, 2024

In the Court of Appeals of Georgia

A24A0348.MILLIKENv.C.MERRILL CONSTRUCTION,LLC.

BROWN, Judge.

JeffMilliken (“the owner”) appeals from the trial court’s entry of a final money

judgment of$100,827.96 in favor ofC.Merrill Construction, LLC (“the contractor”)

following his confession of judgment. The owner contends that the trial court erred

in denying his motion to compel arbitration and to dismiss, in granting the

contractor’s motion to stay arbitration, in its rulings on discovery, and in granting

attorney fees to the contractor. For the reasons explained below, we affirm the trial

court’s denial of the owner’s motion to dismiss, reverse the trial court’s denial of the

owner’s motion to compel arbitration and its grant of the contractor’s motion to stay
arbitration, vacate the trial court’s discovery orders and final judgment, and remand

with direction for the trial court to order the parties to submit to arbitration.

The record shows that on January 6, 2021, the parties entered into a

construction contract that included a dispute resolution provision. On October 7,

2022, the contractor filed suit alleging the owner breached the contract by failing to

pay over $48,000 in outstanding invoices, $5,225.58 owed on an open account for

repairs performed for the owner at a different restaurant location, $8,441 owed on an

open account for HVAC repairs, and interest on these amounts. In addition to its

breach of contract and open account claims, the contractor sought damages based

upon unjust enrichment, quantum meruit, as well as a writ of attachmentonrestaurant

equipment listed for sale and attorney fees, litigation expenses, and costs. The

complaint was served on October 21, 2022, and the owner filed an answer on

November 16, 2022, denying liability; the owner did notraise arbitration as a defense

to the lawsuit.

On January 5, 2023, the owner moved the trial court to dismiss the lawsuit and

compel arbitration. According to the owner’s motion, the contractor failed to make

a demand for arbitration under the contract and brought litigation in violation of the

2
contract terms.The contractor opposed the motion and requested a stay of arbitration

under OCGA § 9-9-6 (b), arguing that the owner waived his right to arbitration, failed

to comply with the agreement to arbitrate by ignoring the contractor’s pre-suit request

for mediation and demand for arbitration, and that not all of the claims asserted in the

complaint were subject to arbitration.

On February 6, 2023, the trial court scheduled a hearing for March 6, 2023, on

the owner’s motion to dismiss and compel arbitration. The following day, however,

the trial court issued a short order denying the motion based upon its consideration

ofthe written submissions of both parties.Itsubsequently denied the owner’s request

for a certificate of immediate review.

On March 17, 2023, the owner filed a verified “Confession of Judgment” in

which he authorized “the clerk of the superior court” to enter “judgment for

$69,009.55.” The document recites that the owner “desires to confess judgment . .

. to settle all claims made or that could have been made by [the contractor]” in the

pending lawsuit. On April 6, 2023, the owner paid $69,009.55 into the registry of the

clerk of court.

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On May 8, 2023, the contractor filed a motion for attorney fees under OCGA

§ 9-15-14 and OCGA § 13-6-11. Following the filing of an opposition brief by the

owner and a hearing held on July 10, 2023, the trial court entered a judgment, as later

amended to correct a minor mathematical error, in the total amount of $100,827.96,

based upon the confessed judgment amount of $69,009.55, prejudgment interest of

$11,317.74, and a $27,431.84 awardof attorney fees and expenses under OCGA§ 9-15-

14 (b) and OCGA § 13-6-11.

1. The owner asserts that the trial court erred in denying his motion to dismiss

and compel arbitration and in granting the contractor’s motion to stay arbitration,

contending that he did not waive his right to arbitration after the contractorfiled suit,

did not fail to comply with conditions precedent for arbitration, and that all of the

claims in the contractor’s complaint should be submittedto the arbitrator.As outlined

below, the trial court should have ordered the parties to submit to arbitration.

“This Court reviews the grant or denial of a motion to compel arbitration de

novo to see if the trial court’s decision is correct as a matter of law; butwe defer to the

trial court’s factual findings unless they are clearly erroneous.” Emory Healthcare v.

Farrell, 359 Ga. App. 621, 622 (859 SE2d 576) (2021). “The Federal Arbitration Act

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(“FAA”) applies in state and federal courts to all contracts containing an arbitration

clause that involves or affects interstate commerce. When the FAAapplies, as it does

here, it must be applied using federal substantive law.” (Citations and punctuation

omitted.) SunTrust Bank v. Lilliston, 302 Ga. 840, 842 (809 SE2d 819) (2018). As a

preliminary matter, we must determine whether the trial court orthe arbitrator should

have determined the issues of waiver, compliance with conditions precedent, and

whether all of the claims asserted in the complaint are subject to arbitration. See

generally Brown v. RAC Acceptance East, 303 Ga. 172, 174-177 (2) (a)-(b) (809 SE2d

801) (2018).

(a) Conduct-based waiver. In general, “courts decide issues of alleged conductbased waiver of arbitration rights[,] . . . but . . . where there is clear and unmistakable

evidence that the parties wanted anarbitrator to resolve the dispute about arbitrability,

courts must give effect to the parties’ agreement.” (Citations and punctuation

omitted.) Brown, 303 Ga. at 175 (2) (a). Accordingly, the Supreme Court of Georgia

has previously held that contract language assigning the “responsibility for resolving

‘disputes about the validity, enforceability, arbitrability or scope of this Arbitration

Agreement’ to the arbitrator” provides clear and unmistakable evidence that the

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arbitrator should decide the issue of conduct-basedwaiver.Id. at 175-176 (2) (a).More

specifically,theSupreme Court concluded thatthe appellant’s“conduct-basedwaiver

argument is a direct challenge to the enforceability of the arbitration agreement.”

(Emphasis supplied.) Id. at 176 (2) (a).

In this case, the parties’ arbitration agreement does not assign responsibility for

resolving disputes involving enforceability to the arbitrator; we must therefore

examine the particular contract language before us for any clear and unmistakable

intent for the arbitrator to decide the issue of conduct-based waiver. The front page

of the contract states that “AIA Document A201-2017, General Conditions of the

Contract for Construction, is adopted in this document by reference.” The contract

further provides:

ARTICLE 6 DISPUTE RESOLUTION

§ 6.1 Initial Decision Maker

The Architect will serve as the Initial Decision Maker pursuant to

Article 15 of AIADocument A201-2017,unless the parties appoint below

another individual not a party to the Agreement to serve as the Initial

Decision Maker. . . .[

1

]

1 The parties did not agree that a person other than the Architect would serve

as the Initial Decision Maker.

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§ 6.2 Binding Dispute Resolution

For any Claim subject to, but not resolved by mediation pursuant to

Article 15 of AIA Document A201-2017, the method of binding dispute

resolution shall be . . . Arbitration pursuant to Section 15.4 of AIA

Document A201-2017.[

2

] 

Section 15.4.1 of the AIA Document A201-2017 provides:

If the parties have selected arbitration as the method for binding dispute

resolution in the Agreement, any Claim subject to, but not resolved by,

mediation shall be subject to arbitration which, unless the parties

mutually agree otherwise, shall be administered by the American

Arbitration Association [“AAA”] in accordance with its Construction

Industry Arbitration Rules in effect on the date of the Agreement.

While these rules do not appear in the record before us, we may take judicial notice

of them. See Miller v. GGNSC Atlanta, 323 Ga. App. 114, 120 (2), n.11 (746 SE2d

680) (2013). The AAA’s Construction Industry Arbitration Rules and Mediation

Procedures, effective July 1, 2015,3 contain the following relevant provisions:

R-1.Agreement of Parties and Designation of Applicable AAA Rules

2 An option for “[l]itigation in a court of competent jurisdiction” was not

selected by the parties.

3 The next version of the Construction Industry Arbitration Rules and

Mediation Procedures became effective on March 1, 2024. See adr.org/construction.

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(a) The parties shall be deemed to have made these Rules a part of their

arbitrationagreement whenever they haveprovided for arbitration by the

[AAA] under its Construction Industry Arbitration Rules. . . .

R-8. Interpretation and Application of Rules

The arbitrator shall interpret and apply these Rules insofar as they relate

to the arbitrator’s powers and duties. . . .

R-9. Jurisdiction

(a) The arbitrator shall have the power to rule on his or her own

jurisdiction, including any objections with respect to the existence,

scope, or validity of the arbitration agreement.

(b) The arbitrator shall have the power to determine the existence or

validity of a contract of which an arbitration clause forms a part.

. . .

R-54. Applications to Court and Exclusion of Liability

(a) No judicial proceeding by a party relating to the subject matter of the

arbitration shall be deemed a waiver of the party’s right to arbitrate.

(i) While no Georgia courts have decidedwhether these provisions ofthe AAA

Construction Industry Arbitration Rules andMediation Procedures provide evidence

of a clear and unmistakable intent for the arbitrator to decide the issue of whether a

party has waived the right to arbitration through its conduct, other jurisdictions

considering the language at issue have concluded that it does not. See, e.g., Plaintiffs’

ShareholdersCorp. v. SouthernFarm BureauLife Ins.Co., 486Fed. Appx. 786, 789-790

(II) (A) (11th Cir. 2012) (rejecting argument that arbitrator should decide issue of

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conduct-based waiver based on AAA rule stating that the “arbitrator shall have the

power to rule on his or her own jurisdiction, including any objections with respect to

the existence, scope or validity of the arbitration agreement”); In re S&R Co. of

Kingston v. Latona Trucking, 159 F3d 80, 85-86 (III) (2nd Cir. 1998) (court not

precluded from finding that a party waived arbitration by actively participating in

litigation by AAA Rule stating “[n]o judicial proceeding by a party relating to the

subject matter of the arbitration shall be deemed a waiver of the party’s right to

arbitrate”).As the Fifth Circuit Court of Appeals observed, “[t]he fact that language

in an arbitration agreement is broad enough to cover a particular issue does not mean

the language is clear and unmistakable.” Intl. Energy Ventures Mgmt. v. United Energy

Group, 999 F3d 257, 264 (II) (B) (5th Cir. 2021). Having reviewed the relevant AAA

rules and the reasoning of other jurisdictions, we conclude that the record before us

lacks the clear and unmistakable evidence to displace the usual presumption that a

court will decide conduct-based waiver of arbitration rights.

(ii) We nowturn to our de novo reviewofwhether the trial court’s denial ofthe

owner’s motion to compel arbitration can be affirmed based upon a finding that the

owner waived his right to arbitration by his conduct in the litigation.

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[A] party may, by its conduct, waive its right to arbitration. Thus,

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. . . .

(Citation and punctuation omitted; emphasis supplied.) SunTrust Bank, 302 Ga. at

842-843.4Georgia courtshave concluded that engaging in the following conduct before

demanding arbitration in pending litigation is inconsistent with the arbitration right:

engaging in extensive discovery;

5

filing amotionforsummary judgment;6participating

4

In Morgan v. Sundance, Inc., 596 U. S. 411 (142 SCt 1708, 212 LE2d 753)

(2022), the United States Supreme Court held that the Federal Arbitration Act does

not require a party claiming waiver to prove “prejudice.” 596 U. S. at 416-419 (II).

Compare Suntrust Bank, 302 Ga. at 843 (including prejudice to the other party in its

determination of whether a party has waived its right to arbitrate under the totality of

the circumstances).As we agree with the parties that this is a case involving interstate

commerce governed by the FAA, we will not examine prejudice in this case. See

generally Wise v. Tidal Const. Co., 261 Ga. App. 670, 673 (1) (583 SE2d 466) (2003)

(when “a transaction involves commerce, . . . the state law and policy . . . must yield

to the paramountfederallaw”;“constructiongenerally involves interstate commerce,

because most building materials pass in interstate commerce”).

5 Wise, 261 Ga. App. at 674 (2).

6

 Id.

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in a pre-trial order,7

attending trial calendars,8selecting a jury;9seeking arbitration

after discovery is complete and the discovery period is over;10extending the time

within which to respond and responding to discovery;11opposing a motion on the

merits;12filing leaves of absence and motions for pro hac vice admissions;13and

waiting for the opposing party’s responses to written discovery requests before

demanding arbitration.14 On the other hand, we have found a party does not act

inconsistently with its right to arbitration when it “only actively engaged the litigation

process after [its] motions [to compel arbitration] were denied.” Langfitt v. Jackson,

7

 Id.

8

 Id.

9

 Id.

10

Phil Wooden Homes v. Ladwig, 262 Ga. App. 792, 793 (586 SE2d 697) (2003).

11 USA Payday Cash Advance Center #1 v.Evans, 281 Ga.App. 847, 850-851 (637

SE2d 418) (2006).

12

 Id.

13

 Id.

14 Ed Voyles Jeep-Chrysler v. Wahls, 294 Ga. App. 876, 878-879 (670 SE2d 540)

(2008).

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284 Ga. App. 628, 633 (1) (644 SE2d 460) (2007) (reversing trial court’s denial of

motion to compel arbitration).

In our examination of whether a party has waived its right to arbitration, it is

important to keep in mind that we must apply a totality of the circumstances test and

that the existence or nonexistence of an individual instance of conduct examined in

our prior cases is not outcome determinative. “The question of what constitutes a

waiver of the right of arbitration depends on the facts of each case.” (Citation and

punctuation omitted.) USA Payday Cash Advance Center #1 v. Evans, 281 Ga. App.

847, 850 (637 SE2d 418) (2006). “Where, as here, the concern is whether the

undisputed facts of [a defendant’s] pretrial participation in the litigation satisfy the

standard for waiver, the question of waiver of arbitration is one of law.” Rush v.

Oppenheimer & Co., 779 F2d 885, 887 (2nd Cir. 1985).

The record shows that the owner filed an answer on November 16, 2022,

denying liability and raising affirmative defenses other than a right to arbitration. On

December 16, 2022, the contractor’s attorney sent a letter by mail and e-mail to the

owner’s attorney alleging that his response to discovery requests (interrogatories,

requests to produce, and requests for admissions) that were served

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contemporaneously with the complaint were overdue. The owner’s counsel

immediately responded by e-mail that he had not received the discovery with the

complaint provided to him by the owner and asked the contractor’s attorney to send

the discovery requests “and allow me sufficient time to review and draft responses.”

On December 19, 2022, the contractor’s counsel provided the discovery

requests to the owner’s attorney by e-mail, as well as information showing that the

discovery had been served on the owner’s wife at their place of residence. He stated

that his good faith attempt to resolve a discovery dispute had requested the responses

be provided by Tuesday, December 27, 2022 (the day after the observed holiday for

Christmas in 2022), and inquired about the amount of time needed to fully respond

to the discovery. On Tuesday, January 3, 2023, the owner’s attorney responded by email that he had not received a response to his request for a reasonable amount oftime

to respond to discovery and was “proceeding as if [the contractor’s attorney] has

granted [it].” In the same e-mail, the owner’s attorney asked for consent “to a

Confidentiality Order” because the contractorwasseeking “confidential Tax records,

personal financial statements and other documents that should not become part ofthe

public record unless necessary to the litigation.” The parties then exchanged e-mails

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on January 4, 2023, outlining their disagreement about service of the discovery with

the complaint and a discussion of the terms of a proposed Confidentiality and NonDisclosure Order. In these discussions, the contractor’s attorney took the position

that all objections to the discovery had been waived and stated an intent to file a

motion to compel if the owner asserted objections to the discovery. On January 5,

2023, the owner filed his demand for arbitration and motion to dismiss the lawsuit.

Following his demand for arbitration, the owner providedwritten responses to

discovery on January 6, 2023. On January 19, 2023, six days after the Consent

Confidentiality andNon-Disclosure Order was enteredonJanuary13,2023,theowner

produced documents to the contractor. On January 20, 2023, the contractor served

requests for production of documents to a law firm and a bank, which the owner

sought to quash on February 2, 2023, based in part upon its pending demand for

arbitration. On January 30, 2023, shortly before seeking to quash the contractor’s

request for production of documents to a nonparty, the owner served his own written

discovery requests on the contractor. On February 7, 2023, the trial court denied the

owner’smotionto compel arbitration.After the trial court denied the owner’s petition

14
for a certificate of immediate review, the contractor provided written discovery

responses to the owner.

Having reviewed the totality of the procedural history of this case, we decline

to find that the owner waived his right to arbitration by his conduct after suit was filed

against him. The owner did not engage in substantial discovery before demanding

arbitration and his conduct is “less accurately characterized as active litigation than

as an effort to protect [his] position.” (Citations and punctuation omitted.) Banq, Inc.

v. Purcell, Case No. 2:22-cv-00773-APG-VCF, 2023 U. S. Dist. LEXIS 7494 at *5 (I)

(A) (2) (D. Nev. January 14, 2023). As another jurisdiction has observed, “not every

foray into the courthouse effects a waiver of the right to arbitrate, and actions

undertaken by a party against whom the waiver would operate that are merely

defensive will be considered consistent with an assertion of the right to arbitrate.”

(Citations and punctuation omitted.) Stark v. Molod Spitz DeSantis & Stark, P.C., 29

A3d 481, 484 (N.Y. App. Div. 2006), reversed on other grounds, Stark v. Molod Spitz

DeSantis & Stark, P. C., 876 NE2d 903 (NY 2007).

15

15 The contractor asserts that the owner’s conduct after he moved to compel

arbitration also demonstrates a waiver. We decline to find, based on the particular

facts and circumstances ofthis case, that the owner’s conduct after moving to compel

arbitration resulted in a waiver.

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(b)Conditions precedent to arbitration.As an alternative ground to affirm the trial

court’s denial of the motion to compel arbitration and the grant of its request for a

stay, the contractor asserts that mediation was a condition precedent to binding

arbitration, and the owner cannot seek to enforce the arbitration provision of the

contract when he failed to attend a scheduled mediation. The owner asserts that he

failed to receive proper notification of any such mediation or a demand therefore. We

cannot consider the merits of this claim, however, as “the question of whether one

party waived its right to compel arbitration by failing to comply with a purported

condition precedent is for the arbitrator to resolve,” Web IV, LLC v. Samples Constr.

Co., 349 Ga. App. 607, 612 (1) (a) (824 SE2d 107) (2019), based on the contract

language outlined above giving the arbitrator “power to rule on his or her own

jurisdiction, including any objections with respect to the existence, scope, or validity

of the arbitration agreement.” See Graddy v. Carnegie Academy, Case No. 2:22-cv00222-DBB-CMR, 2024 U. S.Dist.LEXIS 27487 at *12-13 (B) (D.Utah February 15,

2024); Pinnacle Design/Build Group v. Kelchner, Inc., 490 FSupp3d 1257, 1262-1265

16
(III) (S.D. Ohio 2020).16 Accordingly, it provides no basis to affirm the trial court’s

denial of the owner’s motion to compel arbitration.

(c) Arbitrability of OpenAccount Claims. The owner asserts that all ofthe claims

asserted against him are subject to arbitration, while the contractor asserts that the

facts of the complaint demonstrate that its open account claims are not subject to

arbitration. Once again, this issue is not for the courts to determine. While the parties

agreed to arbitrate “disputes and matters in question between the Owner and

Contractor arising out of or relating tothe Contract[,]” (emphasis supplied), they also

agreed that the arbitrator “shall have the power to rule on his or her own jurisdiction,

including any objections with respect to the . . . scope. . . ofthe arbitration agreement.”

(Emphasis supplied.) AAA Rule R-9. As the Supreme Court of Texas recently

explained after a thorough analysis of nationwide law, “the fact that the parties’

arbitration agreement may cover only some disputes while carving out others does not

affect the fact that the delegation agreement clearly and unmistakenly requires the

arbitrator to decide whether the present disputes must be resolved through

16 The Eleventh Circuit’sdecision inKemironAtlantic, Inc. v.Aguakem Intl., 290

F3d 1287 (11th Cir. 2002), cited by the contractor in its brief, does not require a

different result as that case did not address the arbitrator’s jurisdiction to decide the

question.

17
arbitration.” TotalEnergies E&P USA v. MP Gulf of Mexico, 667 SW3d 695, 719 (III)

(2023).After reviewing the parties’ agreement in this case, we conclude that it clearly

and unmistakenly provides that the arbitrator must decide whether all of the claims

asserted by the contractor fall within the scope of the parties’ arbitration agreement.

Cf. Brown, 303 Ga. at 175-176 (2) (a).

(d) Having addressed each of the arguments related to the propriety of the trial

court’s decision to deny the owner’s motion to compel arbitration and grant the

contractor’s motion to stay arbitration, we reverse both of these orders and remand

this case with direction for the trial court to compel the parties to submit to

arbitration. We affirm the portion of the trial court’s order denying the owner’s

motion to dismiss. See OCGA § 9-9-6 (a) (“If the application [to compel arbitration]

is granted, the order shall operate to stay a pending or subsequent action, or so much

of it as is referable to arbitration.”).

2.Based on our holding in Division 1, we vacate the trial court’s orders entering

a final judgment, granting the contractor’s motion to compel discovery, and denying

the owner’s motions to quash discovery. See Clark v. Merrill Lynch, Pierce, Fenner &

18
Smith, Inc., 924 F2d 550, 556 (II) (B) (4th Cir. 1991) (vacating judgment entered after

trial because trial court erred in denying motion to compel arbitration).

Judgment affirmed in part, reversed in part, vacated in part, and case remandedwith

direction. Dillard, P. J., and Padgett, J., concur.

19