These appeals arise out of the trial court’s denial of the motions for summary judgment filed by both parties in a suit on a guaranty. In 1988, JDN Enterprises as landlord entered into a lease agreement with Super Discount Markets as tenant to operate a Cub Foods store on its premises, a shopping center. KR Douglasville, Inc. is the successor in interest to JDN Enterprises. SuperValu, Inc. and Delhaize The Lion America, Inc. were guarantors on the lease. The tenant allegedly defaulted on the lease agreement, and KR Douglasville brought this guaranty action against SuperValu.1 The trial court denied motions for summary judgment filed by both parties. The parties’ applications for interlocutory review were granted, and these appeals ensued. Each party appeals from the denial of its motion for summary judgment, SuperValu in Case No. A04A1931, and KR Douglasville in Case No. A04A1932. As more fully discussed below, although we disagree with SuperValu’s argument that KR Douglasville breached a co-tenancy provision of the lease, we conclude that SuperValu was discharged from its obligations by novations that occurred without its consent to the 1988 lease agreement. We therefore reverse the trial court’s denial of summary judgment to SuperValu, and we affirm the denial of summary judgment to KR Douglasville. 1. We first consider SuperValu’s contention that KR Douglasville breached a co-tenancy provision contained in Section 9.5 of the 1988 lease, which provides in relevant part: Landlord represents and warrants to tenant, and this lease has been entered into by tenant in reliance upon the representation and warranty of landlord, that the shopping center will contain a Wal-Mart store containing not less than approximately 95,000 square feet of floor area . . . under a lease for a term of not less than twenty 20 years. Prior to commencement of construction of the shopping center, landlord shall deliver to tenant satisfactory evidence of the existence of such lease. In the event that for any reason whatsoever, Wal-Mart Stores, Inc. shall fail to commence operation of a Wal-Mart store in the shopping center in accordance with its lease, tenant shall have the right at any time after the one hundred eightieth 180th day following the date of such failure, to cancel this lease and be released from all further obligations and liabilities hereunder. A Wal-Mart store commenced operations, serving as an anchor tenant for 10 years, from 1990 until it closed in 2000. Super Discount then closed the Cub Foods store and filed for bankruptcy protection.
SuperValu argues that Section 9.5 unambiguously requires the landlord to contain an operational Wal-Mart store for 20 years, that the landlord breached this provision, and that this breach relieved it of its guaranty obligations. KR Douglasville argues that Section 9.5 is an unambiguous “opening co-tenancy provision,” that the requirements of this subsection were met when the Wal-Mart store opened, and that there is no continuing co-tenancy requirement. We agree. “A continuous operation term may be implied between a landlord and a tenant” under certain conditions. Winn-Dixie v Brunner Companies &c. Partnerships , 245 Ga. App. 672, 674 1 538 SE2d 152 2000. Such a term, however, “cannot be implied as to an anchor tenant by another tenant, absent express language to that effect. Cits.” Emphasis supplied. Id. Section 9.5 does not contain express language showing a requirement of a continuing co-tenancy. As argued by KR Douglasville, if the parties had intended for the eventual termination of Wal-Mart’s operations —as opposed to a failure to open —to act as a release of the tenant, they could have said so. The lease has no such provision. Therefore, it is plain from the language of Section 9.5 that the parties contemplated that only a failure to open a Wal-Mart store would result in a breach of the lease. It is undisputed that a Wal-Mart commenced operations as required by the lease. The requirements of Section 9.5 were met.
