In this breach-of-contract action, Textile Rubber & Chemical Company appeals the summary judgment granted to Thermo-Flex Technologies arising out of Textile’s anticipatory breach of its contract with Thermo-Flex. We hold that the evidence is undisputed that Textile breached the contract by its anticipatory actions and that judgment in the amount of $500,000 plus interest was properly entered. However, because the other $1.5 million due under the contract was to be paid out of a percentage of Textile’s divisional net profits after net income had reached a certain point, we vacate and modify the damage formula to be followed in determining the present-value amount of these remaining damages. 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 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 on August 11, 2006, Textile and Thermo-Flex entered into an agreement whereby Thermo-Flex sold certain carpet-making technology to Textile for $3 million, with $500,000 to be paid at closing, $500,000 to be paid on January 1, 2007, $500,000 to be paid on December 31, 2007, and the remaining $1.5 million to be paid in quarterly installments from 25 percent of Textile’s “Thermo-Tex” divisional net profits after the net income of this division had totaled $6 million until paid in full. Regarding the quality of the technology purchased, Textile agreed that it was buying such technology “in an ‘as is’ condition, that no warranties of any type whether for merchantability or fitness for a particular purpose or use, express or implied, or otherwise are being made by Thermo-Flex, and that any and all such warranties are hereby expressly disclaimed to the fullest extent allowed by Georgia law.” The parties reiterated this disclaimer in the bill of sale as follows: NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER INCLUDING BUT NOT LIMITED TO, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, ARE BEING MADE WITH RESPECT TO ANY OF THE FOREGOING AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT ALLOWED BY GEORGIA LAW. Textile paid the $500,000 due at closing and the January 1, 2007 $500,000 payment. As the time approached for the December 31, 2007 $500,000 payment, Textile determined that the technology purchased from Thermo-Flex was defective in that the technology resulted in far too many “volatile organic compounds” “VOCs” being produced, which raised environmental concerns. Textile maintained that Thermo-Flex’s president had specifically represented, promised, and warranted to Textile during contract negotiations that the amount of VOCs produced from the technology would be insignificant. Textile conceded that prior to buying the technology, Textile’s representatives had run many tests on the technology but had not run a test on the technology’s production of VOCs.
