Lease. Fulton Superior Court. Before Judge Glanville.
Schreeder, Wheeler & Flint, John A Christy, Adam L. Hoipkemier, for appellant.
Wiles & Wiles, John J. Wiles, N. Jackson Cotney, Jr., for appellee.
ELLINGTON, Presiding Judge. Phipps, C. J., and McMillian, J., concur.
Ellington, Presiding Judge.
SP5 Atlantic Retail Ventures (" SP5" ) filed this action in the Superior Court of Fulton County against its tenant, The Dolce Group Atlanta, LLC (" Dolce" ), and three guarantors, including Shereen Arazm Koules, for rent and other charges associated with two commercial leases. After Dolce defaulted, SP5 filed a motion for summary judgment against Koules and the other guarantors. After a hearing, the trial court granted SP5's motion as to Koules. Koules appeals, contending that the trial court abused its discretion in excluding certain evidence from
its consideration and erred in granting the motion for summary judgment. For the reasons explained below, we reverse in part, vacate in part, and remand.
The record shows the following undisputed facts. In two leases executed in 2005, Dolce leased space from SP5's predecessor-in-interest, Atlantic Town Center, LLC (" ATC" ), to operate a total of three restaurants in the Atlantic Station development in Atlanta. ATC assigned all its rights, title, and interest in the two subject leases to SP5 in 2010.
[330 Ga.App. 283] The restaurants, which opened in 2007, did not generate the expected revenue, and Dolce did not make all payments due under the two leases as executed in writing. In April 2011, SP5 and Dolce terminated one of the leases by agreement. In October 2011, SP5 filed this action, seeking over $5 million in rent (plus other charges, interest, and attorney fees) allegedly due according to the terms of the two written leases. In SP5's motion for summary judgment against Koules, SP5 claimed that over $8 million in rent (plus other charges, interest, and attorney fees) was then due under the two leases.
Koules conceded that she personally guaranteed Dolce's leases with ATC in 2005. In answering the complaint and in opposing SP5's motion for summary judgment, however, she asserted that the parties orally agreed to modify the lease terms in August 2007, September 2008, and January 2011, and that Dolce had in fact paid as agreed, at least in part. As evidence of these alleged modifications, she identified a number of documents, including billing and payments records, series of e-mails among agents of ATC or SP5 and Dolce, and series of internal e-mails among agents of ATC and SP5. SP5 had produced these documents in response to Koules' request for the production of documents.
Two months before the hearing on SP5's motion for summary judgment, Koules served a request that SP5 admit that the documents were authentic. SP5 denied that the documents were authentic and stated " by way of further clarification" that " the term 'authentic' is vague and ambiguous" and that the documents " speak for themselves." Koules moved the trial court to determine the sufficiency of this response and to deem the requests admitted. Koules attached these documents as exhibits to her brief in opposition to SP5's motion for summary judgment, filed June 21, 2013. In addition, she filed an affidavit executed by her attorney; the documents were identified as exhibits to his affidavit.
SP5 did not move to strike the exhibits before the hearing on its motion. Two weeks before the hearing on SP5's motion for summary judgment, the trial court denied Koules' motion regarding her request for admissions that the documents were authentic, finding that " the term 'authentic' could be ambiguous, especially when referencing e-mails and other documents not easily subject to the traditional classification of 'authentic.' " At the summary judgment hearing, when Koules attempted to rely on the documents to support her defenses of waiver and mutual departure, SP5 objected on the grounds that the documents had not been authenticated. The trial court stated that the documents had not been authenticated and made a part of the record before the hearing and, for that reason, they [330 Ga.App. 284] were not properly before the court and that it would not consider them in ruling on SP5's summary judgment motion. The trial court stated that, unless the documents were self-authenticating, Koules had to depose witnesses or call witnesses at the hearing to authenticate the documents. Koules' counsel asked the trial court to consider ...