ON LINE, INC.
WRIGHTSBORO WALK, LLC
Cert. applied for.
Contract. Richmond Superior Court. Before Judge Craig.
McCorkle & Johnson, David H. Johnson, Tawny D. Mack, for appellant.
Hull Barrett, Brooks K. Hudson, David E. Hudson, for appellee.
DOYLE, Chief Judge. Phipps, P. J., and Boggs, J., concur.
Doyle, Chief Judge.
This appeal arises from a contract dispute over the purchase of commercial real estate. After On Line, Inc. (" On Line" ), failed to complete the purchase of the property, Wrightsboro Walk, LLC (" Wrightsboro" ), filed the instant action against On Line, alleging that On Line breached the parties' contract and acted in bad faith by failing to deposit into escrow the proper amount of earnest money and asking for attorney fees
and costs. Wrightsboro moved for summary judgment, which the trial court granted. On Line appeals, arguing that the trial court erred by (1) finding that the inspection period began on August 23, 2013, rendering On Line's termination untimely; (2) failing to find missing conditions precedent to the obligation; and (3) failing to find a question of fact existed as to whether Wrightsboro was estopped from asserting that its attempt to terminate was untimely. Because there are genuine issues of material fact as to whether On Line was able to obtain financing as a contractual condition precedent to payment of the earnest money and completion of the sale, we 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. A defendant moving for summary judgment may put forth evidence to show that there is no issue of fact as to one or more elements of the plaintiff's causes of action or demonstrate that the record lacks sufficient evidence to support one or more of the plaintiff's causes of action. We review the grant or denial of summary judgment de novo, construing the evidence in favor of the nonmovant.
On Line entered into a purchase and sale agreement (" the Agreement" ) for commercial real estate from Wrightsboro for $3,600,000. The contract provided that upon execution of the Agreement, On Line would deposit into escrow $25,000 in earnest money, which On Line did. Within three days of the expiration of the due diligence period, On Line was required to deposit an additional $25,000 into escrow. This deposit never occurred, however, because On Line terminated the Agreement.
Had the sale been completed, the earnest money would have been applied to the purchase price, but in the event that On Line [332 Ga.App. 778] failed to close
the transaction for reasons other than a [Wrightsboro] default or the inability to have the Loan with Morgan Stanley Mortgage Capital Holdings, LLC,[] ... transferred to [On Line, which occurrences would result in the return of the Earnest Money to On Line,] then the Earnest Money shall be paid to and retained by [Wrightsboro] as [Wrightsboro's] sole remedy . ...
On Line was required to diligently seek from Morgan Stanley a transfer of the Loan, but the Agreement was contingent on this method of ...