PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-2176

ELDERBERRY OF WEBER CITY, LLC, a Virginia limited liability 

company,

Plaintiff - Appellee,

v.

LIVING CENTERS – SOUTHEAST, INCORPORATED, a North Carolina 

corporation; FMSC WEBER CITY OPERATING COMPANY, LLC, a 

Delaware limited liability company; CONTINIUMCARE OF WEBER 

CITY, LLC, a Florida limited liability company; MARINER HEALTH 

CARE, INCORPORATED, a Delaware corporation,

Defendants - Appellants.

Appeal from the United States District Court for the Western 

District of Virginia, at Lynchburg. Norman K. Moon, Senior 

District Judge. (6:12-cv-00052-NKM-RSB)

Argued: January 28, 2015 Decided: July 21, 2015

Before MOTZ, GREGORY, and WYNN, Circuit Judges.

Affirmed in part, vacated in part, and remanded with instructions

by published opinion. Judge Gregory wrote the opinion, in which 

Judge Motz and Judge Wynn joined.

ARGUED: James F. Segroves, HOOPER, LUNDY & BOOKMAN, PC, 

Washington, D.C., for Appellants. James Strother Crockett, Jr., 

SPILMAN THOMAS & BATTLE, PLLC, Charleston, West Virginia, for 

Appellee. ON BRIEF: Lori D. Thompson, LECLAIRRYAN, PC, 

Roanoke, Virginia, for Appellants. Travis A. Knobbe, 

M. Mallory Mantiply, SPILMAN THOMAS & BATTLE, PLLC, Roanoke, 

Virginia, for Appellee.
2

GREGORY, Circuit Judge:

Plaintiff-appellee Elderberry of Weber City, LLC 

(“Elderberry”) filed this civil action in the Western District of 

Virginia alleging breach of a lease for a skilled nursing facility 

against defendants-appellants Living Centers – Southeast, Inc. 

(“Living Centers”), FMSC Weber City Operating Company, LLC 

(“FMSC”), and ContiniumCare of Weber City (“Continium”), and 

breach of a guaranty contract against defendant-appellant Mariner

Health Care, Inc. (“Mariner”). Separately, in the Northern 

District of Georgia, Mariner filed a declaratory judgment action 

against Elderberry, seeking a declaration that it had no 

obligations under the guaranty. The two actions were consolidated 

in the Western District of Virginia. The district court denied 

the parties’ cross motions for summary judgment but held that the 

guaranty was enforceable against Mariner. Following a bench trial, 

the district court entered judgment in favor of Elderberry on all 

counts, and found the appellants jointly and severally liable for 

accrued and future damages amounting to $2,742,029.50, plus preand post-judgment interest at the rate of 0.13%. Because the 

district court erred in awarding damages that accrued after the 

termination of the lease, we vacate in part and remand for the 

district court to recalculate damages for the appropriate time 

period.
3

I.

At the center of this lease and contract dispute is a skilled 

nursing facility located in Weber City, Virginia. Elderberry 

leased the facility to Living Centers in November 2000 for a 10-

year term. Initially, Living Centers was not permitted to assign 

the lease without prior written permission from Elderberry. 

However, in 2006, the lease was amended to allow Living Centers to 

assign the lease to FMSC or any of its subsidiaries or affiliates 

without prior approval from Elderberry so long as Living Centers 

first obtained a guaranty from Mariner.1 In accordance with the 

amendment, the lease reset for a new 10-year term commencing at 

the completion of certain construction and improvements to the 

facility, and thus a new lease expiration date was set for April 

2017. The required guaranty was attached as Exhibit E to the lease 

amendment, and was signed by then Executive Vice President and 

Chief Financial Officer of Mariner, Boyd P. Gentry.

On January 18, 2007, Living Centers assigned the lease to 

FMSC. FMSC, in turn, reassigned it to Continium in November 2011.2 

In the midst of the assignments and amendments, the facility was 

 1 Living Centers is a wholly owned subsidiary of Mariner, 

while FMSC is 75% owned by Mariner through subsidiaries.

2 Continium is owned and controlled by Avi Klein who was at 

the time a manager of FMSC.
4

subject to numerous problems, including being listed as a “Special 

Focus Facility,”3 nonpayment of utility vendors, and interruptions 

of gas and phone service.

Continium ceased making rent payments after March 2012. 

Although Elderberry and Continium thereafter attempted to 

negotiate rent reductions, Continium indicated in May 2012 that it 

was no longer able to make rent payments. Elderberry’s attempts 

to locate a new tenant were initially unsuccessful because of, 

among other problems, the facility’s placement on the Special Focus 

Facility list.

Eventually, Elderberry hired Smith/Packett Med-Com, LLC 

(“Smith/Packett”) to locate a new tenant, conduct lease 

negotiations, and provide asset management services. The two 

entities signed an August 8, 2012 asset management agreement, under 

which Elderberry agreed to pay Smith/Packett a $150,000 signing 

fee for securing a new tenant, a $375,000 value fee on June 1, 

2015, so long as the new tenant was not then in default under the 

new lease, and a monthly management fee of 10% of the new tenant’s 

rent payable.

Subsequent to signing the asset management agreement, on 

August 15, 2015, Elderberry sent Living Centers, Continium, 

 3 Special Focus Facilities are “subject to more frequent 

health and safety inspections.” J.A. 781.
5

Mariner, and their attorneys at the Bernstein Law Firm a letter 

demanding immediate payment of past due rent. The letter indicated 

that if the payments were not made, Elderberry would “be entitled 

to proceed with pursuit of its remedies under the Lease, including, 

but not limited to, seeking damages in court, termination of the 

Lease, and/or taking possession of the Property.” J.A. 201-02. 

The requested past due rent payments were not made. Rather, on 

August 17, 2012, Continium discharged the remaining residents and 

abandoned the facility.

On August 24, 2012, Elderberry mailed the appellants a letter 

bearing the subject line, “LEASE TERMINATION NOTICE.” J.A. 607. 

The letter stated: “this letter shall serve as notice that the 

Lease is hereby terminated, effective 12:00 midnight EST on August 

24, 2012. [Elderberry] reserves all rights and remedies related 

to Tenant’s default whether under the Lease, at law or in equity.” 

J.A. 607.

Elderberry rehabilitated the nursing facility with 

Smith/Packett’s help and eventually entered into a new lease with 

Nova Healthcare Group, LLC (“Nova”) for a new 10-year term 

beginning January 1, 2013. During the course of lease 

negotiations, Nova secured from Elderberry a renovation budget and 

working capital totaling $1.25 million.

One week after Elderberry sent the termination letter to the 

appellants, Mariner filed suit against Elderberry in the Northern 
6

District of Georgia, seeking a declaration that the guaranty was 

unenforceable. Thereafter, Elderberry filed a breach of lease and 

breach of contract action against the appellants in the Western 

District of Virginia. Elderberry sought damages for accrued and 

future rent, as well as “costs, fees and expenses incurred by 

Elderberry to preserve and rehabilitate the property; fees and 

expenses incurred by Elderberry in hiring [Smith/Packett] . . . to 

locate a replacement tenant; sums expended by Elderberry to pay 

utilities, insurance premiums, and real property taxes; and 

attorney’s fees and expenses.” J.A. 7. This consolidated civil 

action followed.

The parties filed cross motions for summary judgment on 

Elderberry’s breach of lease and breach of contract claims, and on 

Mariner’s claim that the guaranty issued in connection with the 

lease assignments to FMSC and Continium was void under the Georgia 

statute of frauds. Although the district court denied both summary 

judgment motions, it held that the guaranty was valid. After the 

subsequent bench trial, the district court ruled in favor of 

Elderberry on all claims, and concluded that Elderberry is entitled 

to damages in the amount of $2,742,029.50, plus pre- and postjudgment interest at the rate of 0.13%. J.A. 803-06. The damages 

award includes:

(1) unpaid rent for the period from April 2012 through 

August 2012 . . . ; (2) unpaid rent from the period 

September 2012 though February 2013 . . . ; (3) a rent 
7

shortfall from March 2013 though April 2017; (4) unpaid 

taxes, utilities, and insurance premiums for the period 

from August 2012 through February 2013 . . . ; (5) 

maintenance fees paid during that same period . . . ; 

(6) payments for architectural and construction 

services. . . to bring the Facility up to the fire code 

standards required by the fire marshal; (7). . . payments 

to Nova [for renovations and working capital] . . . ; 

(8) [the signing fee to Smith/Packett] . . . ; and (9) 

[the value fee to Smith/Packett].

J.A. 793 (footnote omitted).

The appellants timely appealed.

II.

Our review of a district court’s grant of summary judgment is 

de novo. French v. Assurance Co. of Am., 448 F.3d 693, 700 (4th 

Cir. 2006). “Summary judgment is appropriate when there is no 

genuine issue of material fact and the moving party is entitled to 

judgment as a matter of law.” Id. And, “[w]e review a district 

court’s judgment entered after a bench trial under a ‘mixed 

standard of review.’ Under this standard, we review the district 

court’s findings of fact for clear error and conclusions of law de 

novo.” Perez v. Montaire Farms, Inc., 650 F.3d 350, 363 (4th Cir. 

2011) (citation omitted). Our review of the district court’s 

conclusions of law extends to its interpretations of written 

contracts. See FindWhere Holdings, Inc. v. Sys. Env’t 

Optimization, LLC, 626 F.3d 752, 755 (4th Cir. 2010).
8

The appellants make three arguments. First, they argue that 

the district court erred in awarding damages that accrued after 

Elderberry terminated the Lease.4 Second, they contend that 

Virginia law precludes awards for speculative damages, and thus 

the district court’s inclusion of the $375,000 value fee in the 

damage award was erroneous. Finally, the appellants challenge the 

district court’s legal conclusion that the guaranty satisfies the 

Georgia statute of frauds.

III.

The lease states, and the parties agree, that it is governed 

by Virginia law. We thus look to Virginia law to construe the 

lease. In doing so, we consider two broad categories of damages 

flowing from the lease: rent, and non-rent damages.

A.

We first address what portion of accrued or future rent 

Elderberry is entitled to receive as part of its damages award. 

This Circuit has previously observed that

when a tenant abandons leased property during the term, 

the Supreme Court of Appeals of Virginia has held that 

the landlord is permitted, at his option, either (1) to 

refuse to accept the tenant’s surrender, do nothing and 

sue for accrued rents, or (2) to re-enter the premises 

and accept the tenant’s surrender, thereby terminating 

 4 “[Appellants] concede that Living Centers is liable for 

unpaid rent for the period from April 2012 though August 24, 2012.” 

J.A. 794 n.14.
9

the lease and releasing the tenant from further 

liability on the lease.

tenBraak v. Waffle Shops, Inc., 542 F.2d 919, 924 (4th Cir. 1976) 

(footnote omitted) (citing Crowder v. Virginian Bank of Commerce, 

103 S.E. 578 (Va. 1920)). In other words, when a tenant abandons 

a lease, a landlord may sue for rent due on the balance of the 

lease term only if the landlord does not terminate the lease. See

id.; Crowder, 103 S.E. at 579. The choice belongs to the landlord. 

Crowder, 103 S.E. at 579 (“The landlord [is] under no obligation 

to resume possession of the premises which ha[ve] been wrongfully

abandoned, and ha[s] the right to refuse such possession and to 

hold the tenant liable under the contract.”).

Although Virginia law “thus does not provide for recovery of 

future damages for the lessor’s losses arising from the abandonment 

of a contract of lease, . . . the parties are not barred from 

providing for such a recovery through forfeiture provisions in the 

lease.” tenBraak, 542 F.2d at 924-25. Any such provisions “must 

be strictly construed.” Id. at 925. As the Virginia Supreme Court 

has stated, “[t]he prevailing rule is that parties to a contract 

may provide the remedy that will be available to them in case a 

breach occurs so long as the remedy provided is not contrary to 

the law or against public policy.” Bender-Miller Co. v. Thomwood 

Farms, Inc., 179 S.E.2d 636, 638 (Va. 1971). And “the remedy 

provided will be exclusive of other possible remedies only where 
10

the language employed in the contract clearly shows an intent that 

the remedy be exclusive.” Id. Additionally, “the intent of the 

parties as expressed in their contract controls,” and “[i]t is the 

court’s responsibility to determine the intent of the parties from 

the language they employ.” Id. at 639.

Here, the relevant provision of the lease, ¶ 7(3), reads as 

follows:

7. RIGHTS IN DEFAULT.

. . . .

(3) The remedies of the Lessor for any Default by 

the Lessee shall include the following:

(a) Upon any Default by the Lessee and at any 

time thereafter, the Lessor may give written notice to 

the Lessee that the Lessor elects to terminate this Lease 

upon a specific date not less than thirty (30) days after 

mailing of such notice. This Lease shall then be 

terminated on the date so specified.

(b) Upon an uncured Default by the Lessee, 

and notice from the Lessor, the Lessor may reenter the 

and resume possession of the Property. The Lessor, at 

the Lessor’s option, may remove persons and property 

from the Property and may store the property in a public 

warehouse or elsewhere at the expense or for the account 

of the Lessee without liability for any damage on such 

removal. The Lessor’s reentry shall not be deemed either 

an acceptance or a surrender of this Lease or a 

termination thereof. It is expressly understood and 

agreed that in the event of the reentry by the Lessor by 

reason of a default of the Lessee, the Lessee shall 

nevertheless remain liable for the Rent and also for the 

taxes and insurance premiums payable by the Lessee as 

provided in this Lease, for the balance of the term 

herein originally demised.

. . . .

(d) The rights given to the Lessor herein are 

in addition to any rights which may be given to the 

Lessor by statute or otherwise.
11

J.A. 172. Elderberry urges us to conclude that its rights under 

the above provision are cumulative and that it thus had the right 

to simultaneously (1) reenter and relet the facility, and (2) 

terminate the lease and seek from the appellants rent due for the 

balance of the term. To be sure, the above excerpt provides that 

Elderberry’s rights in the event of a default “shall include the 

following.” Id. There is no language suggesting that Elderberry 

must choose either to terminate the lease as provided by ¶ 7(3)(a), 

or to reenter the premises and hold the tenant liable for future 

rent and other fees as provided by ¶ 7(3)(b). Nor are the various 

subparagraphs under lease ¶ 7 separated by the disjunctive word 

“or.”

That said, Elderberry’s reading of the lease is not 

convincing. First, remedy provisions providing for future rent 

“must be strictly construed.” tenBraak, 542 F.2d at 925. And in 

construing remedy provisions, courts must have “due regard for the 

rule that [the lease] must be construed most strongly against the 

lessor.” Va. Lumber & Extract Co. v. O.D. McHenry Lumber Co., 94 

S.E. 173, 174 (Va. 1917). Here, ¶ 7(3) of the lease does not 

affirmatively state that the remedial provisions are cumulative. 

Rather, ¶ 7(3)(b) explicitly provides: “The Lessor’s reentry shall 

not be deemed . . . a termination” of the lease. J.A. 172 (emphasis 

supplied). And it is only under ¶ 7(3)(b), “in the event of the 

reentry,” that the lessee remains liable for future rent and fees. 
12

This language puts ¶ 7(3)(a) and ¶ 7(3)(b) in tension with one 

another. Whereas ¶ 7(3)(a) explicitly terminates the lease 

contract, ¶ 7(3)(b) explicitly leaves the terms of the lease 

contract and the possibility of receiving future rent and fees in 

place. It does not make sense to allow simultaneously the 

termination of the lease and continued application of the lease. 

The better reading, and the one we adopt here, is that upon 

exercising its right to terminate the lease, Elderberry 

extinguished any right that it had to future rent.

Elderberry argues that we should follow the Virginia rule 

that a remedy provided for breach of a contract “will be exclusive 

of other possible remedies only where the language employed in the 

contract clearly shows an intent that the remedy be exclusive.” 

Bender-Miller, 179 S.E.2d at 638. In advancing its argument, 

Elderberry focuses on whether the remedies provided within the 

lease are exclusive of one another. Bender-Miller, by contrast, 

focuses on whether the remedies provided in a contract are 

exclusive of extra-contractual remedies. In that case, the 

Virginia Supreme Court addressed whether the parties “intended by 

virtue of” a certain contract provision “that the remedy provided 

therein be exclusive of other remedies allowed by law.” Id. at 

639 (emphasis added); see also Va. Dynamics Co. v. Payne, 421 

S.E.2d 421, 423 (Va. 1992) (observing that even if a lessor could 

“contract[] away” a statutory right, “the lessor’s statutorily 
13

created right . . . would have to be expressly waived”); Atlas 

Mach. & Iron Works, Inc. v. Bethlehem Steel Corp., 986 F.2d 709, 

713 (4th Cir. 1993) (permitting bankruptcy as a remedy to a breach

of contract where the contract did not explicitly state that the 

remedy stated therein was exclusive). Our reading of Virginia 

case law suggests that there is a presumption against excluding 

statutory or legal rights absent a clear waiver of such rights,

and our construction of the lease here comports with that 

presumption. Although our reading of the lease proscribes the 

collection of future rent and other fees in the event of 

termination, it does not proscribe the pursuit of any rights that 

Elderberry might have outside of those provided in the lease 

itself. Indeed, as quoted above, ¶ 7(3)(d) provides that “[t]he 

rights given to the Lessor herein are in addition to any rights 

which may be given to the Lessor by statute or otherwise.” J.A. 

172.

In light of the foregoing, we hold that Elderberry lost its 

right to rent that accrued after it terminated the lease on August 

24, 2012. Elderberry is, however, entitled to any rent that 

accrued prior to termination of the lease.

B.

We turn next to non-rent damages. A landlord may, as 

Elderberry does here, seek compensation for a tenant’s failure to 

return a leased facility in the required condition. See, e.g., 
14

Sharlin v. Neighborhood Theatre Inc., 167 S.E.2d 334 (Va. 1969). 

And the Supreme Court of Virginia long ago stated that when an 

action for breach of lease covenant “is brought after the end of 

the term, the measure of damages is still held to be such a sum as 

will put the premises in the condition in which the tenant is bound 

to leave them.” Vaughan v. Mayo Milling Co., 102 S.E. 597, 601 

(Va. 1920) (quoting Watriss v. First Nat’l Bank of Cambridge, 130 

Mass. 343, 345 (1879)). “[T]his is true even if the repairs have 

not been made by the landlord.” Sharlin, 167 S.E.2d at 338 (citing 

Vaughan, 102 S.E. at 602). Virginia’s rule is in line with the 

general rule that

where a lease contains a provision or option giving the 

right or privilege of cancellation and the agreement is 

canceled in pursuance of the right or privilege thus 

given, such cancellation does not extinguish liabilities 

that have already accrued under the lease, regardless of 

whether the liability is that of the party who exercised 

the option to cancel the agreement or is the liability 

of the party against whom cancellation was made. Such 

cancellation of the lease does, however, terminate 

liabilities to accrue in the future, such as rent, except 

where by express provision in the lease termination is 

not to affect the accrual of such liabilities.

49 Am. Jur. 2d Landlord and Tenant § 204 (emphasis added) (footnote 

omitted). Accordingly, upon termination of a lease, a landlord is 

entitled to recover liabilities accrued up to the point of 

termination.

Aside from rent payments, the lease here includes covenants 

requiring the lessee to pay for utility services, sales and use 
15

taxes, general real estate taxes and special assessments, and 

insurance premiums. See J.A. 165 (Lease ¶ 3). Moreover, the lease 

provides:

Lessee will keep the Property and any and all buildings 

and improvements (including inside and outside) which 

are now or may be erected or placed on said Property, in 

good order and repair subject to reasonable wear and 

tear at its sole cost and expense. All repairs and 

replacements shall be in quality and class at least equal 

to the original work. Lessee will pay when due all costs 

associated with any such repairs, replacements or other 

work undertaken by it, and will not suffer any mechanic’s 

and/or materialmen’s liens to be maintained against the 

Property.

J.A. 166 (Lease ¶ 4(2)). The lease additionally requires that the 

premises be returned to Elderberry “in the same condition as when 

demised to the Lessee, reasonable wear and tear and damage by fire 

or other casualty insured against being excepted.” J.A. 167 (Lease 

¶ 4(5)). Another provision states that the lessee “will comply 

with all lawful requirements of the Board of Health, Police 

Department, Fire Department, Municipal, State and Federal 

authorities.” J.A. 167 (Lease ¶ 4(6)). Each of these covenants 

serves as a source of damages that potentially accrued prior to 

the termination of the lease. Indeed, the district court relied 

on these provisions in determining several portions of the damages 

award.

Curiously, the appellants do not directly address whether 

they challenge the district court’s inclusion of utility fees,

maintenance fees, and the like in the damages award. They merely 
16

ask this Court to reduce the judgment to $220,576.94, the amount 

of unpaid rent that accrued prior to the termination of the lease. 

While this request could be seen as an indirect challenge to the

award of damages flowing from their breach of the covenants listed 

above and their failure to return the nursing facility in the 

required conditions, the appellants did not set forth arguments 

challenging the district court’s factual findings or legal 

conclusions concerning accrued non-rent damages. They have thus

waived any argument with respect to those non-rent damages. See

Carter v. Lee, 283 F.3d 240, 252 n.11 (4th Cir. 2002) (“[T]his 

Court normally views contentions not raised in an opening brief to 

be waived.”).

In light of the foregoing, we hold that Elderberry is entitled 

to non-rent damages that accrued prior to termination of the lease. 

We therefore remand this case for the district court to recalculate 

rent and non-rent damages that accrued prior to August 24, 2012.5

IV.

 5 Because damages are restricted to those accruing prior to 

termination of the lease, we need not address the appellants’ 

contention that the Smith/Packett $375,000 value fee is 

speculative. By its terms, that payment necessarily accrued after 

termination of the lease and therefore cannot be part of the 

damages award. Indeed, Elderberry itself categorizes the value 

fee as future damages. See Resp. Br. of Appellee 25 n.9.
17

The appellants argue that the district court erred in finding 

that the guaranty satisfies the Georgia statute of frauds.6 Under 

Georgia law, “[t]he statute of frauds requires that a promise to 

answer for another’s debt, to be binding on the promisor, ‘must be 

in writing and signed by the party to be charged therewith.’” John 

Deere Co. v. Haralson, 599 S.E.2d 164, 166 (Ga. 2004) (citation 

omitted). “This requirement has been interpreted to mandate 

further that a guaranty identify the debt, the principal debtor, 

 6 The choice of law provision in the guaranty at issue here 

is blank. Because we are exercising diversity jurisdiction in 

this case, we must apply the choice of law principles of the state 

in which the case was filed. Klaxon Co. v. Stentor Elec. Mfg. 

Co., 313 U.S. 487, 496-97 (1941). While Mariner’s declaratory 

judgment claims regarding the guaranty were filed in the Northern 

District of Georgia, those claims were transferred to the Western 

District of Virginia, and Elderberry’s claims concerning the 

guaranty were also filed in Virginia. We need not concern 

ourselves with whether Virginia or Georgia choice of law rules 

apply, because under either analysis, we would conclude that 

Georgia law applies. This is because each state applies the rule 

of lex loci contractus. See Seabulk Offshore Ltd. v. Am. Home 

Assurance Co., 377 F.3d 408, 419 (4th Cir. 2004) (observing that 

in Virginia, questions of “interpretation of a contract are 

resolved according to the law of the state where the contract was 

made”); Ferrero v. Associated Materials Inc., 923 F.2d 1441, 1444 

(11th Cir. 1991) (“[T]he Georgia conflict of laws rule for 

contracts . . . is lex loci contractus.”). And the final act 

necessary to effectuate the guaranty under either state’s law, the 

signature by Mariner’s representative, took place in Georgia. See

Seabulk Offshore, Ltd., 377 F.3d at 419 (“Under Virginia law, a 

contract is made when the last act to complete it is performed.”); 

Christian v. Bullock, 205 S.E.2d 635, 638 (Va. 1974) (applying law 

of state in which contract was executed); Gen. Tel. Co. of the Se. 

v. Trimm, 311 S.E.2d 460, 461 (Ga. 1984) (“In order to determine 

where a contract was made, the court must determine where the last 

act essential to the completion of the contract was done.”). 

Neither party disputes the application of Georgia law.
18

the promisor, and the promisee.” Id.; see also Lafarge Bldg. 

Materials, Inc. v. Thompson, 763 S.E.2d 444, 445 (Ga. 2014). The 

guaranty here identifies and is signed by the promisor: Mariner. 

However, as noted by the appellants, the guaranty includes several 

blanks where the parties were to have identified the landlord, 

original tenant, tenant, and the lease:

FOR VALUE RECEIVED, and in connection with the 

assignment and transfer of the rights of tenant under a 

certain Lease agreement, dated [_________], between 

[LANDLORD] (“Landlord”) and [TENANT] (“Original 

Tenant”), as the same was assigned by Original Tenant to 

[NEW TENANT] (“Tenant”), pursuant to an Assumption and 

Assignment Agreement, dated [__________] (as further 

amended, modified or assigned, the “Lease”), covering 

certain premises known as [FACILITY NAME AND ADDRESS], 

Mariner Health Care, Inc., a Delaware corporation, the 

undersigned (hereinafter referred to as “Guarantor,” 

whether one or more) hereby guarantees unto Landlord the 

full and prompt payment of the rent and all other sums 

and charges payable by Tenant under the Lease (hereafter 

collectively referred to as “Obligations”). Guarantor 

hereby covenants that if Tenant shall default in the 

payment of any of the Obligations, Guarantor shall pay 

the amount due to Landlord.

J.A. 196 (emphasis and blanks in original). The question is thus 

whether the guaranty nonetheless sufficiently identifies the debt, 

principal debtor, and promisee.

The Supreme Court of Georgia’s recent decision in Lafarge 

Building Materials examined a situation in which a guaranty was 

“set off in a box at the bottom of the second page” of a credit 

application. 763 S.E.2d at 445. The guaranty identified the 

principal debtor simply as “the Applicant identified on page 1 of 
19

this Application for Credit.” Id. The guaranty, however, 

incorporated the credit application by reference. Id. In 

reversing the Georgia Court of Appeals’ conclusion that the 

guaranty did not satisfy the statue of frauds, the Georgia Supreme 

Court read the guaranty “in conjunction with the incorporated 

application, and with the word ‘applicant’ bearing its usual and 

common meaning.” Id. at 447. While the court noted that “the 

better practice for lenders—the approach that can forestall 

extended litigation like this case—is to simply name the principal 

debtor directly in the guaranty,” the court nonetheless concluded 

that the guaranty satisfied the statute of frauds. Id.

In addition to approving the use of incorporated documents to 

sufficiently identify the terms of a guaranty, id. at 447, the 

Georgia Supreme Court has also recognized that § 24-3-3(a) of the 

Georgia code7 “authorizes the use of contemporaneously executed 

writings to provide necessary terms not contained in the document 

at issue, or to correct obvious errors in the document at issue.” 

White House Inn & Suites, Inc. v. City of Warm Springs, 676 S.E.2d 

178, 179 (Ga. 2009) (“[A] contemporaneously executed document can 

provide a property description missing from a contract for the 

sale of real property; establish the terms of a purportedly vague 

option agreement; establish and correct a misnomer; correct an 

 7 Formerly Ga. Code Ann. § 24-6-3.
20

‘obvious error’; or establish that the acceptance of an offer was 

conditional.” (citations omitted)). In discussing the 

contemporaneous writings rule, the White House Inn court cited 

with approval C.L.D.F., Inc. v. The Aramore, LLC, 659 S.E.2d 695 

(Ga. Ct. App. 2008). Id. There, the Georgia Court of Appeals 

construed a lease and guaranty together to correct a scrivener’s 

error where “the Lease and the Guaranty were executed on the same 

date, at the same time, and at the same location” and “[t]he 

Guaranty was physically attached to the Lease and was identified 

as a ‘special provision[] . . . attached . . . as [an] exhibit and 

. . . made a part of th[e] Lease.’” C.L.D.F., Inc., 659 S.E.2d at 

696.

These cases and Georgia’s contemporaneous writings rule 

suggest that omitting a required name or piece of information from 

a guaranty does not render the guaranty unenforceable if the 

omitted name or information can be readily ascertained when the 

guaranty is read in conjunction with documents incorporated by 

reference, or with documents physically attached to and 

contemporaneously executed with the guaranty. The guaranty in 

this case, though containing a significant number of blanks, is 

attached as Exhibit E to the lease amendment. Thus, we can 

construe the guaranty together with the lease amendment. And in 

the lease amendment, the parties agreed that Living Centers would 

be permitted to assign the lease to “Family Senior Care Holdings 
21

LLC or any of its subsidiaries or affiliates” without prior written 

permission from Elderberry so long as Mariner agreed to guarantee 

the lessee’s obligations. J.A. 180. Reading the blanks in the 

guaranty together with the lease and the lease amendment, and 

giving the terms landlord, original tenant, and tenant their usual 

and common meanings, the guaranty sufficiently identifies 

Elderberry as the landlord and Living Centers as the original 

tenant.8 See Lafarge Bldg. Materials, 763 S.E.2d at 447.

However, the blank in the guaranty representing the tenant 

(i.e., principal debtor) is not filled in with a specific entity, 

but rather with the descriptive phrase “Family Senior Care Holdings 

LLC or any of its subsidiaries or affiliates.” Because the phrase 

“Family Senior Care Holdings LLC or any of its subsidiaries or 

affiliates” is, on its face, susceptible to more than one meaning, 

we find it to be ambiguous. See Horwitz v. Weil, 569 S.E.2d 515, 

516 (Ga. 2002) (“Ambiguity in a contract is defined as duplicity, 

indistinctness or an uncertainty of meaning or expression.”). And 

under Georgia law, we are permitted to consult parol evidence “to 

explain ambiguities in descriptions.” L. Henry Enters., Ltd. v. 

 8 We find it noteworthy that the appellants “volunteered or 

offered to provide a guaranty of Mariner Health” and wanted to 

“add that to the amendment in order to procure [Elderberry’s] 

agreement to the assignment.” J.A. 660; see also J.A. 663 (“A 

guaranty was offered by Mr. Gentry.”). Not only that, but there 

is uncontradicted testimony in the record that the guaranty was 

actually “provided by Mr. Gentry” of Living Centers as part of the 

lease amendment negotiations. J.A. 663.
22

Verifone, Inc., 614 S.E.2d 841, 844 (Ga. Ct. App. 2005) (“[W]hile 

the Statute of Frauds prohibits using parol evidence to supply 

completely missing terms, it does not prohibit using parol evidence 

to explain ambiguities in descriptions.”).

Using the parol evidence rule here to consult extrinsic 

evidence, it is clear that the principal debtor at the relevant 

time was Continium. Living Centers first assigned the lease to 

FMSC, evidenced by a document entitled “Assignment and Assumption 

Agreement.” J.A. 203. A document cited and quoted by the district 

court entitled “Assignment and Assumption of Contracts” then 

demonstrates that FMSC assigned the lease to Continium on November 

1, 2011.9 Elderberry of Weber City, LLC v. Living Centers-Se., 

Inc., 958 F. Supp. 2d 623, 633 (W.D. Va. 2013). As shown above, 

Continium stopped paying rent after March 2012 until Elderberry 

terminated the lease on August 24, 2012. These are the relevant 

rent payments for which Continium was the principal debtor and for 

which Mariner guaranteed. Indeed, a September 9, 2011 letter sent 

to Elderberry by the appellants’ attorneys reflects exactly that 

understanding. See J.A. 199 (“Notwithstanding this proposed 

 9 We note that the parol evidence rule, unlike the 

contemporaneous writings rule, does not require the extrinsic 

evidence to have been prepared at the same time. See, e.g., 

McKinley v. Coliseum Health Grp., LLC, 708 S.E.2d 682, 684–85 (Ga.

Ct. App. 2011) (affirming the trial judge’s use of parol evidence 

to grant summary judgment where parol evidence consisted of 

deposition testimony taken subsequent to the execution of the 

contract).
23

assignment [from FMSC to Continium], it is intended that the 

Mariner Health Care, Inc. Lease Guaranty executed in conjunction 

with the First Amendment to the Lease Agreement dated June 19, 

2006, shall remain in full force and effect to guaranty the 

obligations of assignee Continium[].”).

Given the Georgia Supreme Court’s most recent pronouncement 

on that state’s statute of frauds, combined with Georgia’s parol 

evidence rule, we hold that the guaranty satisfies the Georgia 

statue of frauds.

V.

For the foregoing reasons, the judgment of the district court 

is

AFFIRMED IN PART, VACATED IN PART, AND

REMANDED WITH INSTRUCTIONS.