Commercial landlord, Fundus America Atlanta Limited Partnership “Fundus”, sued tenants, RHOC Consolidation LLC “RHOC” and its parent company Marriott International, Inc. “Marriott” collectively “appellees”, for a writ of possession, breach of contract, and attorney fees, arising from the assignment of a lease for a hotel in downtown Atlanta. Appellees filed counterclaims for a declaratory judgment that appellees were not in violation of the lease, breach of lease, negligent misrepresentation and attorney fees. Both parties moved for summary judgment after discovery. Following a hearing, the trial court granted the motions in favor of appellees, and Fundus appeals. Finding no error, we affirm. Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”1 A defendant may establish entitlement to summary judgment either by “presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support those claims.”2 If the defendant establishes those requirements, the plaintiff must point to specific evidence giving rise to a triable issue.3 When reviewing the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and the evidence,4 and we view the evidence in the light most favorable to the nonmovant. “When a question of law is at issue . . . we owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.”5
So viewed, the evidence shows that Fundus is the owner of a hotel property located in downtown Atlanta the “Hotel”. After acquiring the property in 1990, Fundus completed a multi-million dollar renovation of the Hotel. In October 1990, Fundus leased the Hotel to Penta Hotels Georgia, Inc. “Penta”, pursuant to a lease with a 20 year term the “Lease”. Penta had multiple obligations under the Lease, including that it use the Hotel solely as a “first class hotel”, keep the Hotel in good repair, pay for all capital improvements and repairs needed, keep the Hotel in compliance with all government regulations, and not commit waste. The management and operations of the Hotel switched hands several times until Penta engaged Renaissance to manage Hotel. Marriott acquired the Renaissance brand in 1997, and operated Hotel under that brand until 2005. In 2005, Penta’s6 obligations under the lease were assigned to Marriott’s wholly-owned subsidiary, RHOC. In connection with this assignment, Marriott executed an Unconditional Guaranty of Payment and Performance the “Marriott Guaranty” and Fundus executed an estoppel certificate7 the “Estoppel Certificate” asserting that the lease had not been breached by prior tenants.
