Fuqua Construction Company, Inc. and Newman Homes, Inc. collectively “FCC/NH” appeal from the trial court’s order granting summary judgment to Pillar Development, Inc. “Pillar” on the issue of liquidated damages. For reasons that follow, we affirm. This is the second appeal arising from the parties’ litigation. See Pillar Dev. v. Fuqua Constr. Co. , 284 Ga. App. 858 645 SE2d 64 2007. The underlying facts, as set forth in our prior opinion, demonstrate that Pillar and FCC/NH negotiated a real estate development deal through which Pillar agreed to sell FCC/NH 81 residential subdivision lots for $7,290,000. Pursuant to the sales agreement, FCC/NH made two earnest money payments totaling $150,000: $100,000 upon execution of the agreement, and $50,000 when Pillar recorded the subdivision plat.
FCC/NH ultimately refused to close the transaction, and Pillar retained the earnest money as liquidated damages under Section 10.3 of the sales agreement. That section provides: In the event of FCC/NH’s failure to comply with or perform any of the covenants, agreements or other obligation, or default under this Agreement and fails to cure such problem within the period provided above, then Pillar shall either a retain the earnest money as full liquidated damages, then this Agreement shall, except as expressly set forth elsewhere herein, be null and void, and none of the parties hereto shall have any further rights or obligations hereunder it is hereby agreed that, without resale, Pillar’s damages will be difficult to ascertain and that the Earnest Money constitutes a reasonable liquidation thereof and is intended not as a penalty, but as full liquidated damages pursuant to Section 13-6-7 of the Official Code of Georgia Annotated; or b to pursue a decree of specific performance. Asserting that it refused to close because Pillar violated the terms of the sales agreement, FCC/NH sued to recover its earnest money. Pillar denied any violation and counterclaimed, arguing that FCC/NH breached the agreement by not closing, thus authorizing it to retain the earnest money as liquidated damages. The parties filed cross-motions for summary judgment, and the trial court granted summary judgment to FCC/NH. See id.
