SAGE ATLANTA PROPERTIES, LTD.
BARNES, P. J., DOYLE, P. J. and MERCIER, J.
BARNES, PRESIDING JUDGE.
Atlanta Properties, LTD (hereinafter "Sage")
appeals the trial court's grant of summary judgment to
judgment is proper when the record reveals no genuine issues
of material fact and the moving party is entitled to judgment
as a matter of law. OGCA § 9-11-56 (c). We review the
trial court's grant of summary judgment de novo,
construing the evidence and all reasonable inferences in
favor of the nonmoving party. Touchton v. Bramble,
284 Ga.App. 164 (643 S.E.2d 541) (2007). Additionally, to
prevail at summary judgment a movant who does not bear the
burden of proof need only show an absence of evidence to
support an essential element of the nonmoving party's
case. Lau's Corp v. Haskins, 261 Ga. 491 (405
S.E.2d 474) (1991). Absent evidence sufficient to create a
genuine issue as to any essential element of the
respondent's claim, summary judgment is proper regardless
of any factual issues regarding nonessential elements.
viewed, the record shows that on November 1, 2014, Sage and
The Diner Group of Georgia, LLC entered into a 24-month lease
of property to be used as a restaurant. Hawxhurst and
Christopher Murphy were guarantors for the Diner Group on the
lease. The lease contained a provision for four
two-year renewal options. On June 28, 2016, Tammi Duncan
signed a notice of intent to exercise the option to renew and
faxed the notice to Sage. On the document, Duncan was
identified as the owner/president of the Diner Group. Because
she was not familiar with Duncan, Sage's general counsel
contacted the general counsel for the Diner Group and was
informed that Duncan now owned Hawxhurst's shares in the
company. Based on the explanation, Sage accepted the renewal.
the renewal period, the Diner Group defaulted on the lease
terms and Sage filed a complaint for breach of lease and an
action on a personal guaranty against The Diner Group,
Duncan, Hawxhurst, and Murphy. Sage alleged that The Diner Group
had breached the lease by failing to pay rent, taxes, late
fees and other obligations under the lease, and that
Hawxhurst and Murphy had personally guaranteed the
performance of the lease obligations and thus Sage was
entitled to a judgment for those monies from the guarantors.
Hawxhurst answered and subsequently filed a motion for
summary judgment in which he asserted that the renewal was
void and unenforceable because both the lease renewal and the
authority of an agent to execute the renewal on behalf of the
tenant must be in writing. The trial court granted the motion and
held that although Duncan was an authorized agent of the
Diner Group for purposes of signing the renewal lease,
because it was a contract for a lease for a period in excess
of one year, "[t]he absence of proper written evidence
authorizing an agent to bind a principal to such a lease
renders the contract void and unenforceable." The trial
court also found that Duncan failed to provide notice of the
extension per the express terms of the lease because the
notice documents were faxed to Sage rather than, per the
terms of the lease, "serve[d] [it] by registered or
certified mail." .
When a motion for summary judgment is made and supported as
provided in this Code section, an adverse party may not rest
upon the mere allegations or denials of his pleading, but his
response, by affidavits or as otherwise provided in this Code
section, must set forth specific facts showing that there is
a genuine issue for trial. If he does not so respond, summary
judgment, if appropriate, shall be entered against him.
OCGA § 9-11-56 (e).
appeal, Sage contends that the trial court erred in granting
summary judgment to Hawxhurst because the evidence
demonstrated Duncan's apparent authority to execute the
lease extension on behalf of the Diner Group and its
guarantors. Sage further asserts that a jury question remains
as to Duncan's actual authority to act on their behalf,
and Sage's reliance on her apparent agency.
satisfy the statute of frauds, a contract creating the
relation of landlord and tenant for a period in excess of one
year must be in writing." (Punctuation and footnote
omitted.) Nacoochee Corp. v. Suwanee Inv. Partners,
275 Ga.App. 444, 446 (1) (620 S.E.2d 641) (2005). See OCGA
§ 44-7-2 (a). And, when a contract required by the
statute of frauds to be in writing is executed by an agent,
the authority of the agent to execute the agreement must also
be in writing. Brookhill Mgmt. Corp. v. Shah, 197
Ga.App. 305, 306 (398 S.E.2d 290) (1990).
the record includes a series of emails inquiring into
Duncan's relationship with the Diner Group after
Sage's general counsel received the lease extension
signed by Duncan. Murphy, the other guarantor of the lease,
emailed the attorney verifying Duncan's relationship with
the Diner Group, informing Sage that he had transferred
Hawxhurst's shares to Duncan, and that he had been
"looking for a new partner as we still had eleven months
remaining on the lease." The email also detailed
Duncan's experience as a restauranteur and noted that
business had been improving with her involvement.
the sufficiency of the email to satisfy that the agency
authorization be in writing,
[t]he "equal dignity" rule, codified at OCGA §
10-6-2, provides in part, "The act creating the agency
shall be executed with the same formality (and need have no
more) as the law prescribes for the execution of the act for
which the agency shall be created." Accordingly, it has
been held that since a contract creating the relation of
landlord and tenant for a period in excess of one year must
be in writing, the authority of an agent to execute such a
contract likewise must be in writing. However, it is also the
law in this state that while a written instrument may have
been executed by an agent not having any authority in writing
to do so or not having been ratified by an act of
comparable dignity, the principal may nevertheless be
estopped by his acts from denying the authority of his agent.
(Citations and punctuation omitted; emphasis supplied.)
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