United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
THOMAS W. THRASH, Jr., District Judge.
This is an action seeking to recover on a guaranty. It is before the Court on the Plaintiff ND Properties' Motion for Summary Judgment [Doc. 23]. For the reasons set forth below, the Plaintiff's Motion for Summary Judgment [Doc. 23] is GRANTED in part and DENIED in part.
On June 11, 1998, 3455, LLC and Cousins Loret entered into a leasing agreement ("Lease") under which 3455 leased the first floor of the building located at 3455 Peachtree Road, Northeast in Atlanta, Georgia (the "Pinnacle" building). 3455 used the space to operate the Bluepointe restaurant, and the Lease term was set to expire on October 31, 2014. In connection with the Lease, the Defendant Buckhead Life Restaurant Group, Inc. entered into an agreement ("Guaranty") in which it guarantied 3455's performance under the Lease. In 2004, Cousins Loret assigned its rights under the Lease to the Plaintiff ND Properties.
According to ND Properties, in late 2008, 3455 began periodically missing rent payments. Eventually, ND Properties brought an action in the Magistrate Court of Fulton County, Georgia. It sought to exercise the remedies the Lease provided for in the event of a default, which included the following:
18.2.2[:] Landlord may terminate [3455's] right of possession (but not this Lease) and... expel or remove ... without thereby releasing Tenant from any liability hereunder, without terminating this Lease... and Landlord may... relet the... Premises... and receive the rent therefor, Tenant hereby agreeing to pay to Landlord the deficiency, if any, between all Rent reserved hereunder and the total rental applicable to the Lease Term hereof obtained by Landlord re-letting, and Tenant shall be liable for Landlord's reasonable expenses in redecorating and restoring the... Premises and all reasonable costs incident to such re-letting.
ND Properties and 3455 participated in court-mandated mediation and ultimately entered into a consent agreement. This agreement states, in part:
Tenant's right to possess the premises (but not the Lease) shall immediately terminate (without further notice to Tenant) on the sooner to occur of (i) 11:59 p.m. on November 30, 2011, or (ii) the date on which any of the Forbearance Conditions fails to be satisfied.
3455 vacated the premises on November 30, 2011, and did not make any further rent payments for the subsequent months. Then, in December of 2012, ND Properties relet the premises to a new tenant who began its term (and began paying rent) in October of 2013.
In a separate case, which was removed to this Court, 3455 brought an action against ND Properties. There, 3455 requested a declaratory judgment stating that: (1) " is not liable for rent payments after  vacated the Premises, " (2) "ND Properties improperly retained possession of [3455's] property, (3) "ND Properties' actions in granting a right-of-way over to a third-party constituted termination of the Lease, " and (4) " is not obligated to clean and repair the Premises, or that such cleaning is not necessary." The Court granted a Motion for Judgment on the Pleadings as to the first claim, stating that "the Lease contained an explicit and detailed provision' that permitted ND Properties, upon [3455's] default, to take possession of the Premises, without terminating the Lease, and without relieving  of its obligation to continue making rent and other payments required by the Lease." ND Properties asserted a counterclaim against 3455 for breach of the Lease agreement. ND Properties moved for summary judgment against 3455's remaining claims, and in favor of its counterclaim, which the Court granted on August 5, 2014.
In this case, ND Properties has filed suit against Buckhead Life Restaurant Group seeking to recover under the Guaranty. In particular, ND Properties seeks to recover for 3455's unpaid rent for the period between December of 2011 (right after 3455 vacated the premises) and September of 2013 (the month before the new tenant took over). Additionally, ND Properties seeks to recover (1) costs associated with reletting the premises, (2) other charges that 3455 incurred under the Lease, such as utility and parking fees, and (3) attorneys' fees. ND Properties now moves for summary judgment.
II. Legal Standard
Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. The court should view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant. The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact. The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. A "mere ...