                            FOURTH DIVISION
                              BARNES, P. J.,
                        DOYLE, P. J. and MERCIER, J.

                   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.
                               http://www.gaappeals.us/rules


                                                                     March 6, 2019




In the Court of Appeals of Georgia
 A18A2081. SAGE ATLANTA                     PROPERTIES,           LTD.       v.
     HAWXHURST

      BARNES, Presiding Judge.

      Sage Atlanta Properties, LTD (hereinafter “Sage”) appeals the trial court’s

grant of summary judgment to George Hawxhurst.

      Summary 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 SE2d 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 SE2d 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. Id.

      So 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.1 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.

      During 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

      1
       Per the lease, the “guaranty . . . shall continue in full force and effect during
the term of the lease and for any renewal and shall not be affected by any
modifications, changes or revisions to the lease.”

                                           2
against The Diner Group, Duncan, Hawxhurst, and Murphy.2 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.3 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




      2
          Hawxhurst is the only appellee in this appeal.
      3
      The trial court had earlier entered a default judgment against Hawxhurst;
however, the court granted Hawxhurst’s subsequent motion to open default.

                                           3
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).

      On 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.



      “To 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 SE2d 641) (2005). See OCGA § 44-7-2 (a). And, when a contract required

                                           4
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 SE2d 290) (1990).

      Here, 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.

      As to 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

                                          5
      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.) 20/20 Vision Center v.

Hudgens, 256 Ga. 129, 133-134 (3) (4) (345 SE2d 330) (1986). And,

      [t]he authority of an agent . . . may be established by the principal’s
      conduct and course of dealing, and if one holds out another as his agent,
      and by his course of dealing indicates that the agent has certain
      authority, and thus induces another to deal with his agent as such, he is
      estopped to deny that the agent has any authority which . . . the agent
      apparently has.


(Punctuation omitted.) Id.

      We agree with the trial court’s finding that Murphy’s email explaining

Duncan’s position did not satisfy the statute of frauds because the email was not a

writing in “equal dignity” to that of the original lease such that it legally established

Duncan’s agency.

      However, we find that there remains a genuine issue of material fact as to

whether Sage is entitled to relief under the doctrine of apparent agency. See Butkus


                                           6
v. Putting Greens Intl. Corp., 222 Ga. App. 661, 663 (475 SE2d 693) (1996) (“In

order to recover under a theory of apparent or ostensible agency, a plaintiff must

establish three elements: (1) that the alleged principal held out another as its agent;

(2) that the plaintiff justifiably relied on the care or skill of the alleged agent based

upon the alleged principal’s representation; and (3) that this justifiable reliance led

to the injury.”)

             The doctrine of apparent agency is predicated on principles of
      estoppel, and its applicability, therefore, is determined by examining
      both the conduct of the alleged principal and the detrimental reliance on
      that conduct by the third party asserting the doctrine. Apparent authority
      . . . creates an estoppel allowing third parties to bind a principal to the
      agent’s acts on account of the principal’s conduct, reasonably construed
      by third parties acting in innocent reliance thereon. The acts of the agent
      which create apparent authority may include written or spoken words or
      any other conduct of the principal which, reasonably interpreted, causes
      the third person to believe that the principal consents to have the act
      done on his behalf by the person purporting to act for him. While a
      finding of apparent agency cannot be based upon the assumption that an
      agency relationship exists, the conduct giving rise to apparent agency
      may be proved . . . by . . . proof of circumstances, apparent relations, and
      the conduct of the parties. Such evidence must show that the principal
      either intended to cause the third person to believe that the agent was
      authorized to act for him, or he should have realized that his conduct
      was likely to create such belief. . . . [A] principal may be estopped from

                                           7
      denying agency where his intentional or careless conduct causes a third
      party to believe that the transaction was entered into by or for him.


(Citations and punctuation omitted.) Capital Color Printing v. Ahern, 291 Ga. App.

101, 109 (2) (661 SE2d 578) (2008).

      It is undisputed that Sage undertook to ascertain Duncan’s relationship with the

Diner’s Group and was assured by a partner that she was also a partner with the group

and had for the eleven months prior to the extension been involved in the operation

and re-branding of the restaurant. And, it was only after receiving that assurance, and

relying on Duncan’s apparent partnership with the Diner Group, that Sage accepted

the renewal. Thus, the evidence would support a finding of Duncan’s apparent

agency.

      ***The trial court also found that Duncan’s failure to comply with the terms

of the lease by not proving the required notice by registered mail “renders the option

unenforceable.” We do not agree.

      Generally, “the exercise of a contractual option by an offeree must be

unequivocal and in accordance with the terms of the option in order to be valid.”

(Footnotes and punctuation omitted.) Atkinson v. Cook, 271 Ga. 57, 58 (518 SE2d

413) (1999). In Atkinson, although the Supreme Court of Georgia held that strict

                                          8
compliance was required by a buyer who purported to exercise an option by sending

notice via regular mail, when the contract required notice by registered mail. Id.

However, the Supreme Court also stated that there was no evidence that the seller

waived his right to strict compliance with the option contract’s terms and noted that

it might have reached a different result if the seller had accepted the buyer’s improper

notice within the option period or if he had proceeded to a closing based on the

improper notice. Id. at 59, n. 8.

      In this case, Sage waived its right to strict compliance of the renewal options

mail requirement. After receiving the notice via fax, rather than challenging the

propriety of the notice, Sage’s general counsel contacted the Diner Group to inquire

about Duncan’s authority and afterward, according to counsel, being reassured, Sage

accepted the renewal. Given these events, we conclude that strict compliance with the

certified mail requirement was waived. See Storey v. Austin , 221 Ga. 692, 695-696

(1) (146 SE2d 728) (1966) .

      Accordingly, we reverse the trial court’s grant of summary judgment to

Hawxhurst.

      Judgment reversed. Doyle, P. J. and Mercier, J., concur.



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