Following the grant of its application for interlocutory appeal, LandSouth Construction, LLC appeals from the trial court’s denial of its motion to dismiss a complaint brought by Lake Shadow Limited, LLC and to compel arbitration. LandSouth contends that the trial court erred in finding that it had waived its right to compel arbitration due to its actions in a previous, separate case involving the same contract. For the following reasons, we reverse the court’s order and remand for further proceedings consistent with this opinion. The record shows the following relevant and undisputed facts. In September 2005, Lake Shadow hired LandSouth to build a condominium complex in Gainesville. The parties entered into a contract that included a binding arbitration provision in which they agreed to mediate, arbitrate, or both, any and all actions, claims, and disputes “arising out of or related to the Contract.” In October 2007, after completion of the project, a dispute arose regarding the amounts due under the contract, and LandSouth filed a mechanic’s lien against Lake Shadow in Cobb County in the amount of $526,902.92 plus interest. LandSouth then filed a complaint in Gwinnett County to perfect and foreclose on its lien hereinafter, the “Gwinnett County lawsuit”. In its complaint, LandSouth claimed that Lake Shadow owed it $526,902.92 for work completed under the contract, asserted three alternative theories of recovery supporting its claim to that amount breach of contract, quantum meruit, and unjust enrichment, and requested attorney fees. LandSouth did not invoke its right to arbitration in the complaint. Before Lake Shadow filed an answer to the complaint and before the parties engaged in any significant discovery, the parties entered into mediation and settled the dispute. LandSouth then dismissed the Gwinnett County lawsuit in March 2008.
Seven months later, Lake Shadow filed the complaint at issue in the instant case, seeking an award of damages against LandSouth for alleged construction defects and claiming breach of contract, breach of warranty, and negligent construction. LandSouth answered and moved to dismiss the complaint and to compel arbitration. Following a motion hearing,1 the trial court concluded that LandSouth had waived the arbitration provision of the contract when it filed the Gwinnett County lawsuit without asserting its right to arbitration. In addition, the court ruled that if the lawsuit had been only an attempt to perfect and foreclose on its lien, then no waiver of arbitration under the contract would have occurred, because LandSouth was legally required at that time to seek such relief by means of a court action. As to the other claims asserted in the Gwinnett County Complaint, however, LandSouth chose to forego the arbitration option and thereby waived that option in the current case. Based upon this conclusion, the court denied LandSouth’s motion to compel arbitration, but granted a certificate of immediate review. This Court granted LandSouth’s application for interlocutory appeal,2 and this appeal followed.
