Appellants J.R. and Patricia Krogh “the Kroghs” filed the underlying lawsuit seeking a refund of a $28,210 real estate commission paid to appellee Pargar, LLC d/b/a Prudential Georgia Realty “Prudential” prior to a closing. Both parties filed cross motions for summary judgment. The Kroghs appeal the trial court’s denial of their motion and its grant of Prudential’s motion. The Kroghs contend that the terms of the Lease/Purchase Agreement “the contract” entitled them to a refund of the pre-paid commission after the financing contingency was not satisfied and the sale failed to close. Prudential contends that the commission was non-refundable and unconditional pursuant to the unambiguous terms of the contract. We affirm the trial court’s denial of summary judgment to the Kroghs based on its determination that the failure of the financing contingency did not void the entire contract or Prudential’s entitlement to a commission. However, we reverse the trial court’s grant of summary judgment to Prudential because we find the contract ambiguous as to whether the commission was refundable once the sale failed to close, and a question of material fact exists as to the parties’ intent on this issue.
On appeal of a grant of summary judgment, we review the evidence de novo and determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. Rubin v. Cello Corp. , 235 Ga. App. 250 510 SE2d 541 1998. “Summary judgment is appropriate when the court, viewing all the facts and evidence and reasonable inferences from those facts in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins , 261 Ga. 491 405 SE2d 474 1991.” Citations and punctuation omitted. Id. at 251.
