In this suit for specific performance of a real estate contract, Ayesha Chowhan appeals from the trial court’s grant of summary judgment to Phillip and Laura Miller, arguing that issues of fact remain as to whether the Millers’ conduct waived the necessity of a timely tender of an earnest payment. For the reasons set forth below, we affirm. 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; Britt v. Kelly & Picerne, Inc. 1 “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.” Kaesemeyer v. Angiogenix, Inc. 2
So construed, the evidence demonstrates that Ayesha Chowhan entered into a Commercial Purchase and Sale Agreement “agreement” for the purchase of real property owned by the Millers in Evans, Georgia. The agreement included a clause entitled “Binding Agreement Date,” which provided in part that: “This instrument shall become a binding agreement on the date ‘Binding Agreement Date’ when notice of acceptance of this Agreement has been received by offeror.” Chowhan was notified that the Millers accepted her offer on March 23, 2005, thus rendering the agreement binding on that date. The agreement also specifically provided that “time is of the essence.” In addition, Section 4 of the agreement stated in part that: Buyer shall have 90 days from the Binding Agreement Date ‘Due Diligence Period’ to evaluate the Property, the feasibility of the transaction, the availability and cost of financing, and any other matter of concern to Buyer. During the Due Diligence Period, Buyer shall have the right to terminate this Agreement upon notice to Seller if Buyer determines based on an evaluation of the above that it is not desirable to proceed with the transaction. Based on the March 23, 2005 Binding Agreement Date, the Due Diligence Period was scheduled to expire on June 21, 2005. The agreement further provided that: “At the end of the Due Diligence Period, Buyer shall make an additional Earnest Money deposit of $40,000 into Escrow. This transaction shall be consummated the ‘Closing’ 60 days following the end of the Due Diligence Period.”
