Promenade II Promenade

Smith, Gambrell & Russell has won a yearslong battle with its landlord, Cousins Properties, over a plan that would have seen large, illuminated logos for an accounting firm placed at the top of Atlanta’s landmark Promenade.

Last month, after litigation that wound its way to the Georgia Court of Appeals and back, an arbitration panel sided with Smith Gambrell, ruling the placement of the signage for Frazier & Deeter—”a more recent tenant and a lesser tenant”—violated the terms of the law firm’s lease.

The panel agreed with Smith Gambrell that the installation of the signs would constitute a “de facto change in the name of the building,” where the firm’s filings indicate it pays about $5 million a year in rent.

Smith Gambrell sued Cousins in 2014, arguing the placement of four 17-foot square “signature” signs bearing Frazier & Deeter’s “FD” logo atop the tower violated the terms of its lease agreement, and demanded that the plan be stopped.

The Promenade is a 40-story tower topped with a distinctive ziggurat-styled spire and stainless steel fins that looms over Peachtree and 15th streets in Midtown.

Smith Gambrell has been the Promenade’s largest tenant since shortly after the tower opened in 1990, and claimed in its complaint that it was contractually guaranteed the right to approve any “substantial addition … or alteration” to the building’s exterior.

Cousins bought the property in 2011, when the building was 40 percent vacant, and F&D began discussions to move in two years later.

According to court filings, F&D indicated to Cousins that unless it was granted “branding” rights atop the building, it would go somewhere else, although it subsequently leased space and maintains offices there today.

Cousins agreed to install illuminated “signature signs” for F&D just below the Promenade’s pinnacle that would be visible from Atlanta’s downtown expressways.

Smith Gambrell’s 2014 complaint, filed in Fulton County Superior Court by Chilivis, Cochran, Larkins & Bevers partners Anthony Cochran and John Larkins Jr., argued the placement of the logos would constitute a “de facto renaming of the building” and that, “so long as it is the largest tenant at Promenade, its right to signage trumps those of any other tenant.”

Smith Gambrell also argued the signs violated city ordinances and threatened the “architectural and aesthetic integrity” of the building.  

The suit included an affidavit from one of the Promenade’s lead architects, Thomas Ventulett III, stating that the Promenade “was never intended to have signs attached near the top of the building where its distinctive architectural features and lighting appear.”

F&D was not a party to the litigation.

In 2015 Cousins, represented by Troutman Sanders partner Thomas Reilly, moved to compel arbitration. Judge Alford Dempsey Jr. granted the motion.

Smith Gambrell appealed to the Court of Appeals, which upheld Dempsey’s ruling that there was no breach of the lease’s arbitration clause.

On Dec. 20, an arbitration panel consisting of Bondurant, Mixson & Elmore partner Emmet Bondurant, Ford & Harrison partner F. Carlton King Jr. and Senior Fulton County Superior Court Judge Philip Etheridge ruled the installation of the signs without the law firm’s consent “is prohibited by and would constitute a material breach of multiple provisions” of the 2003 lease.

The panel also awarded Smith Gambrell more than $140,000 incurred only in prosecuting the arbitration action, and not any fees associated with the prior litigation.

Smith Gambrell moved to have Dempsey confirm and enter the award on Tuesday.

Asked whether the firm would seek attorney fees, Cochran said Smith Gambrell “has no comment on the award other than that it speaks for itself, and does not want to comment on anything that might occur in the future.”

Reilly and a spokeswoman for Cousins did not respond to requests for comment.