In this action for real estate commissions, the potential buyer Desmear Systems, Inc. appeals the summary judgment awarding real estate commissions to a real estate broker Jeff Vines, arguing that material issues of fact precluded summary judgment. Specifically, the buyer claims i that evidence undisputably showed the real estate contracts’ financing contingencies were not met, and ii that no undisputable evidence showed that the reason for this failure was the buyer’s lack of cash. We agree and reverse. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 c. A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp .1
So viewed, the evidence shows that two sets of sellers listed their neighboring commercial properties with the same broker.2 The broker procured a buyer for the properties, and on June 15, 2003, the broker, the buyer, and the respective sets of sellers entered into two identical real estate sales contracts with the exception of the prices, the names of the sellers, and the descriptions of the property to be sold. Each contract conditioned the agreement “upon Buyer’s ability to obtain a loan except if the loan is denied because Buyer lacks sufficient cash to close excluding the amount of the loan and/or because Buyer has not sold or leased other real property in the principal amount of 80 of the purchase price listed above.” Each contract further provided: In the event the sale is not closed because of Buyer’s and/or Seller’s failure or refusal to perform any of their obligations herein, the non-performing party shall immediately pay the Broker the full commission the Broker would have received had the sale closed, and the Broker may . . . pursue the non-performing party for . . . the commission. The buyer entrusted the broker with $100,000 in earnest money, of which $40,000 was non-refundable if the buyer did not close by the contract deadline.
