Piedmont Center 15, LLC “Piedmont Center”, brought a dispossessory action against Aquent, Inc. “Aquent”, seeking to recover possession of leased space and past due rent. Aquent answered, claiming its predecessor-in-interest, Renaissance Worldwide, Inc. “Renaissance”, exercised a partial cancellation option in the commercial lease agreement, so that Aquent was not liable for the claimed arrearage. The parties filed cross-motions for summary judgment. The trial court denied Piedmont Center’s motion, but partially granted Aquent’s motion, finding that whether Aquent substantially complied with the termination provision was a question of fact for the jury. In Case No. A07A0407, Piedmont Center appeals the denial of its motion for summary judgment and the partial grant of Aquent’s motion for summary judgment, and in Case No. A07A0408, Aquent cross-appeals the denial of its motion for summary judgment. For reasons that follow, we reverse in Case No. A07A0407, and dismiss as moot Aquent’s appeal in Case No. A07A0408. We conduct a de novo review of both the law and the evidence on appeal from the grant or denial of a motion for summary judgment. We view the evidence in a light most favorable to the nonmovant in order to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law.1 The undisputed facts show that Renaissance, a wholly owned subsidiary of Aquent, entered into a commercial lease the “Lease” with Piedmont Center on March 8, 1999, for Suites 1200 and 1400 in Building 15, Piedmont Center, located at 3575 Piedmont Road, Atlanta the “Premises”. The original term of the Lease ran for seven years from on or about May 22, 1999, through May 31, 2006. Pursuant to special stipulations attached to the Lease, Renaissance had a cancellation option that allowed it to cancel that portion of the Lease related to the 14th floor at the end of the fifth year of the Lease, or May 31, 2004, “subject to compliance with” certain terms and conditions. One of these conditions was that Renaissance give notice of its intent to cancel 12 months before the cancellation date, i.e., May 31, 2003. A second condition was that Renaissance make a lease cancellation payment “on or before 90 days prior” to the end of the fifth year of the Lease, i.e, March 2, 2004. Paragraph 32 of the Lease further provides that “time is of the essence of this Lease.” On or about April 1, 2002, Renaissance subleased the portion of the Premises on the 12th floor to a company known as GovConnect, Inc., a Delaware corporation. On May 30, 2003, Renaissance timely notified Piedmont Center of its intent to exercise the cancellation option. On March 30, 2004, 28 days after the deadline established by the Lease, Piedmont Center received a letter from Renaissance purporting to enclose a “termination fee,” along with a check dated March 4, 2004, in the amount of $277,472, drawn on Aquent’s account. James McKeown, Vice President of Aquent and Renaissance, averred that “it was through inadvertence that this check was not sent on or before March 2, 2004, a fact which is evident from the date of the check. Renaissance real estate tickler file contained the incorrect date for the termination fee.” Piedmont Center returned Aquent’s check to Renaissance on the day it was received and advised Renaissance that because the termination fee had been tendered after the date allowed by the Lease, the Lease would remain in full force and effect until it expired on May 31, 2006. Piedmont Center did not give Aquent any notice or opportunity to cure the late payment.
In June 2004, Renaissance stopped paying rent for the portion of the Premises on the 14th floor. Aquent continued to collect rent from GovConnect under the sublease of the 12th floor approximately $18,000 per month and to pass this rent through to Piedmont Center.2 The monthly rent shortage for the 14th floor was $47,347.65 per month for June and July 2004, and $49,507.93, per month beginning August 2004 through May 31, 2006. In addition, Renaissance failed to pay a small monthly electricity charge. The total arrearage for rent and utilities through June 3, 2005, was $652,461.38.
