FIRST DIVISION BROWN, C. J., BARNES, P. J., and WATKINS, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
October 30, 2025
In the Court of Appeals of Georgia A25A0757. REALTY PROFESSIONALS, INC. v. DE LA VALETTE; A25A0758. DE LA VALETTE v. REALTY PROFESSIONALS, INC.
BARNES, Presiding Judge.
At issue in these companion appeals is a cancelled real estate transaction and
a claim for brokerage fees asserted by Realty Professionals, Inc (“RPI”) against the
prospective purchaser, Ofelia de Valette. In Case A25A0757, RPI challenges the trial
court’s denial of its motion for summary judgment as to its entitlement to brokerage
fees from Valette after she unilaterally terminated a purchase agreement for the
property, and concurrent grant of summary judgment to Valette. Valette cross-appeals
in Case No. A25A0758, and contends that the trial court erred in vacating and re-
entering the summary judgment order after RPI, in a motion to set aside the judgment, claimed that it had not received a copy of the order and was not aware of the ruling
until after its appellate rights had expired. Because the trial court did not apply the
proper legal standard for granting the motion to set aside the judgment, we vacate the
judgment and remand for further action consistent with this opinion.
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). “On
appeal from the grant or denial of a motion for summary judgment, we review the
evidence de novo, and all reasonable conclusions and inferences drawn from the
evidence are construed in the light most favorable to the nonmovant.” McCaskill v
Carillo, 263 Ga. App. 890, 890 (589 SE2d 582) (2003).” And “[o]n cross-motions for
summary judgment, each party must show there is no genuine issue of material fact
and that each, respectively, is entitled to summary judgment as a matter of law; either
party, to prevail by summary judgment, must bear its burden of proof.” Heiskell v.
Roberts, 342 Ga. App. 109, 112 (2) (a) (802 SE2d 385) (2017) (citations and
punctuation omitted) .
So viewed, the record shows that commencing on June 16, 2022, RPI, through
its agent Tommy Sands, entered into an “Exclusive Seller Brokerage Engagement
2 Agreement” (hereinafter “broker’s agreement”) with Kenneth Knight to sell
Knight’s Brookhaven home. Per the broker’s agreement, Knight agreed to pay RPI a
commission of six percent of the sales price of the home at closing.
Valette was interested in purchasing a smaller home, but needed to first sell her
home. She enlisted Nancy Keenan to assist in her search as her listing and buyer’s
agent. Valette informed Keenan that any purchase had to be contingent on her first
selling her home, and Keenan advised her to get pre-qualified, find a home and put a
bid on it, and then list her home for sale. Valette averred that she was verbally pre-
qualified for a $700,000 to $800,000 mortgage loan, contingent upon the sale of her
home. During discovery, she learned that a preapproval letter was submitted with her
offer, but did not include that approval was contingent upon the sale of her home. The
preapproval letter dated April 7, 2022, included that Valette was pre-approved for a
30-year fixed conventional loan for a “TBD” property in Sandy Springs with a
purchase price of $1,000,000.00. It also included that preapproval was not a guarantee
of financing and was conditioned upon “re-verification of [Valette’s] financial
condition and credit worthiness upon final underwriter review.”
3 Valette became interested in Knight’s home, and Keenan advised her to make
a competitive bid over the $795,000 list price because of other offers on the home. She
submitted a bid for $810,000 and agreed to close within four weeks. According to
Sands, there were three offers including Valette’s offer, and Knight had selected
Valette’s offer, although there was another offer for the same purchase price but “not
as much down and not maybe as quick a closing.” Vallette averred that she was not
aware the preapproval letter was submitted with the bid.
On June 19, 2022, Valette entered into a Purchase and Sale Agreement
(hereinafter “PSA”) with Knight for $810,000, and Vallette paid $10,000 in earnest
money. They were scheduled to close in approximately one month on July 22, 2022.
During that same time, Valette listed her home for $745,000, and she received one
offer lower than the listed price, and another offer for the listed price, but the potential
buyer could not close by July 22. On July 14, 2022, Valette executed a unilateral
termination of the PSA and disbursement of the earnest money to Knight.
On August 29, 2022, RPI filed the underlying complaint for damages associated
with Valette’s alleged breach of the PSA. RPI asserted that per the terms of the PSA,
because of Valette’s unilateral breach of the PSA she was required, as the defaulting
4 party, to pay RPI the commission it would have received had the transaction closed.
That commission, RPI alleged, would have totaled $48,600, which represented the
property’s sale price of $810,000 times 6 percent.
In its subsequently filed motion for summary judgment, RPI asserted that
Valette was in breach of the PSA and bound by what she signed, and consequently it
was entitled to the commission it would have been paid pursuant to the PSA and
broker’s agreement. Valette also filed a motion for summary judgment in which she
asserted that the termination of the PSA nullified RPI’s claim for damages and that
the liquidated provision in the PSA was an unenforceable penalty. On April 29, 2024,
the trial court entered an order granting Valette’s motion for summary judgment and
denying RPI’s motion. The trial court found that “[a]s the right to [RPI’s]
commission was extinguished when the underlying contract was terminated by the
parties, the court finds that summary judgment is appropriately awarded to [Valette].
Alternatively, the Court finds that [RPI’s] failure to mitigate its damages effectively
reduc[ed] the amount of damages that could be sought from [Valette].”
On June 26, 2024, RPI filed a motion to set aside judgment, in which it alleged
that it had not received the final order granting summary judgment, and thus was
5 precluded from seeking a timely appeal of the order. Valette opposed the motion, but
on October 4, 2024, the trial court entered an revised order granting Valette’s motion
for summary judgment and, in a footnote, granting RPI’s motion to set aside. It is from
the re-entered motion that RPI and Valette appeal.
Case No. A25A0758
Consistent with this Court’s duty to inquire into its jurisdiction, we must first
consider the cross-appeal, as Valette disputes this Court’s jurisdiction over the appeal
in A25A0757 and contends that the trial court erroneously granted RPI’s motion to
set aside the first order granting summary judgment. According to Valette, RPI’s
failure to exercise diligence caused it to miss the appeal period because the record
establishes that the April 29, 2024 summary judgment order was sent and there was
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FIRST DIVISION BROWN, C. J., BARNES, P. J., and WATKINS, J.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
October 30, 2025
In the Court of Appeals of Georgia A25A0757. REALTY PROFESSIONALS, INC. v. DE LA VALETTE; A25A0758. DE LA VALETTE v. REALTY PROFESSIONALS, INC.
BARNES, Presiding Judge.
At issue in these companion appeals is a cancelled real estate transaction and
a claim for brokerage fees asserted by Realty Professionals, Inc (“RPI”) against the
prospective purchaser, Ofelia de Valette. In Case A25A0757, RPI challenges the trial
court’s denial of its motion for summary judgment as to its entitlement to brokerage
fees from Valette after she unilaterally terminated a purchase agreement for the
property, and concurrent grant of summary judgment to Valette. Valette cross-appeals
in Case No. A25A0758, and contends that the trial court erred in vacating and re-
entering the summary judgment order after RPI, in a motion to set aside the judgment, claimed that it had not received a copy of the order and was not aware of the ruling
until after its appellate rights had expired. Because the trial court did not apply the
proper legal standard for granting the motion to set aside the judgment, we vacate the
judgment and remand for further action consistent with this opinion.
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). “On
appeal from the grant or denial of a motion for summary judgment, we review the
evidence de novo, and all reasonable conclusions and inferences drawn from the
evidence are construed in the light most favorable to the nonmovant.” McCaskill v
Carillo, 263 Ga. App. 890, 890 (589 SE2d 582) (2003).” And “[o]n cross-motions for
summary judgment, each party must show there is no genuine issue of material fact
and that each, respectively, is entitled to summary judgment as a matter of law; either
party, to prevail by summary judgment, must bear its burden of proof.” Heiskell v.
Roberts, 342 Ga. App. 109, 112 (2) (a) (802 SE2d 385) (2017) (citations and
punctuation omitted) .
So viewed, the record shows that commencing on June 16, 2022, RPI, through
its agent Tommy Sands, entered into an “Exclusive Seller Brokerage Engagement
2 Agreement” (hereinafter “broker’s agreement”) with Kenneth Knight to sell
Knight’s Brookhaven home. Per the broker’s agreement, Knight agreed to pay RPI a
commission of six percent of the sales price of the home at closing.
Valette was interested in purchasing a smaller home, but needed to first sell her
home. She enlisted Nancy Keenan to assist in her search as her listing and buyer’s
agent. Valette informed Keenan that any purchase had to be contingent on her first
selling her home, and Keenan advised her to get pre-qualified, find a home and put a
bid on it, and then list her home for sale. Valette averred that she was verbally pre-
qualified for a $700,000 to $800,000 mortgage loan, contingent upon the sale of her
home. During discovery, she learned that a preapproval letter was submitted with her
offer, but did not include that approval was contingent upon the sale of her home. The
preapproval letter dated April 7, 2022, included that Valette was pre-approved for a
30-year fixed conventional loan for a “TBD” property in Sandy Springs with a
purchase price of $1,000,000.00. It also included that preapproval was not a guarantee
of financing and was conditioned upon “re-verification of [Valette’s] financial
condition and credit worthiness upon final underwriter review.”
3 Valette became interested in Knight’s home, and Keenan advised her to make
a competitive bid over the $795,000 list price because of other offers on the home. She
submitted a bid for $810,000 and agreed to close within four weeks. According to
Sands, there were three offers including Valette’s offer, and Knight had selected
Valette’s offer, although there was another offer for the same purchase price but “not
as much down and not maybe as quick a closing.” Vallette averred that she was not
aware the preapproval letter was submitted with the bid.
On June 19, 2022, Valette entered into a Purchase and Sale Agreement
(hereinafter “PSA”) with Knight for $810,000, and Vallette paid $10,000 in earnest
money. They were scheduled to close in approximately one month on July 22, 2022.
During that same time, Valette listed her home for $745,000, and she received one
offer lower than the listed price, and another offer for the listed price, but the potential
buyer could not close by July 22. On July 14, 2022, Valette executed a unilateral
termination of the PSA and disbursement of the earnest money to Knight.
On August 29, 2022, RPI filed the underlying complaint for damages associated
with Valette’s alleged breach of the PSA. RPI asserted that per the terms of the PSA,
because of Valette’s unilateral breach of the PSA she was required, as the defaulting
4 party, to pay RPI the commission it would have received had the transaction closed.
That commission, RPI alleged, would have totaled $48,600, which represented the
property’s sale price of $810,000 times 6 percent.
In its subsequently filed motion for summary judgment, RPI asserted that
Valette was in breach of the PSA and bound by what she signed, and consequently it
was entitled to the commission it would have been paid pursuant to the PSA and
broker’s agreement. Valette also filed a motion for summary judgment in which she
asserted that the termination of the PSA nullified RPI’s claim for damages and that
the liquidated provision in the PSA was an unenforceable penalty. On April 29, 2024,
the trial court entered an order granting Valette’s motion for summary judgment and
denying RPI’s motion. The trial court found that “[a]s the right to [RPI’s]
commission was extinguished when the underlying contract was terminated by the
parties, the court finds that summary judgment is appropriately awarded to [Valette].
Alternatively, the Court finds that [RPI’s] failure to mitigate its damages effectively
reduc[ed] the amount of damages that could be sought from [Valette].”
On June 26, 2024, RPI filed a motion to set aside judgment, in which it alleged
that it had not received the final order granting summary judgment, and thus was
5 precluded from seeking a timely appeal of the order. Valette opposed the motion, but
on October 4, 2024, the trial court entered an revised order granting Valette’s motion
for summary judgment and, in a footnote, granting RPI’s motion to set aside. It is from
the re-entered motion that RPI and Valette appeal.
Case No. A25A0758
Consistent with this Court’s duty to inquire into its jurisdiction, we must first
consider the cross-appeal, as Valette disputes this Court’s jurisdiction over the appeal
in A25A0757 and contends that the trial court erroneously granted RPI’s motion to
set aside the first order granting summary judgment. According to Valette, RPI’s
failure to exercise diligence caused it to miss the appeal period because the record
establishes that the April 29, 2024 summary judgment order was sent and there was
no failure of the electronic filing system. Consequently, Valette asserts, the appeal in
A25A0757 should be dismissed because the trial court was not authorized to reset
RPI’s appeal clock from an erroneously re-entered order, and thus RPI’s notice of
appeal filed from the second summary judgment order was untimely.
“The proper and timely filing of the notice of appeal is an absolute requirement
to confer jurisdiction upon the appellate court.” Smith v. McTaggart, 343 Ga. App.
6 144, 145 (806 SE2d 229) (2017) (citation and punctuation omitted). “In the absence
of a timely filed notice of appeal, this Court is without jurisdiction to consider the
merits of the case, and the appeal in [the] case must be dismissed.” Parker v. Robinson,
337 Ga. App. 362, 364 (1) (787 SE2d 317) (2016) (citation and punctuation omitted).
Generally, a motion to set aside is not one of the motions listed in OCGA §
5-6-38 (a) that automatically extends the time for filing a notice of appeal. However,
“OCGA § 9–11–60 (g) allows a court to set aside a previously entered judgment, after
the term in which the judgment was entered, where such action is necessary to correct
a clerical error, including the failure to serve a party with a copy of the judgment.”
North Druid Dev. v. Post, Buckley, Schuh & Jernigan, 330 Ga. App. 432, 440 (767 SE2d
29) (2014) (footnote omitted) (on motion for reconsideration). “A trial court’s
decision regarding a motion to set aside a judgment will not be reversed absent a
showing of manifest abuse of discretion. And a trial court’s ruling on a motion to set
aside a judgment will be affirmed if there is any evidence to support it.”Smith v. Parks
Hotels & Resorts, 364 Ga. App. 192, 196 (874 SE2d 383) (2022) (citations and
punctuation omitted).
7 Valette contends on appeal that the trial court committed plain legal error in
applying the test in OCGA § 9-11-5 (f) (5) rather than the test set forth in Ga. Unif.
Super. Ct. Rule 36.16 (E) to its analysis of whether the April 29 final order should be
set aside. OCGA § 9-11-5 (f) (5) provides that, “[i]f electronic service of a pleading
is made upon a person to be served, and such person certifies to the court under oath
that he or she did not receive such pleading, it shall be presumed that such pleading
was not received unless the serving party disputes the assertion of nonservice, in
which case the court shall decide the issue of service of such pleading.” Rule 36.16 (E)
provides, in part, that “[u]pon filing, an electronically filed document is deemed
served on all parties and counsel.”
In its motion to set aside, RPI argued that the April 29 final order should be set
aside pursuant to OCGA § 9-11-60 (g) for the alleged clerical mistake of failing to
provide RPI with notice of the final order and pursuant to OCGA § 9-11-60 (d) for
alleged factual mistakes in the final order. In support of its motion to set aside, RPI’s
attorney averred that his firm had “problems with File & ServeXpress (the ‘Xpress
System’)” and that it was “widely known that Fulton County has continued to have
8 severe problems with their systems ever since they were recently hacked by a third
party.” The attorney further averred that “through no fault of his own” he did not
receive the final order when was entered on April 29, 2024 either electronically or
otherwise, and was not made aware of the order until June 19, 2024 “after the time for
appeal had run.”
According to the attorney, even after becoming aware of the final order, he was
unable to access the order through the system. The attorney averred that he had
notified the trial court’s law clerk about a problem with the system because of trouble
with a prior order, and that he had instructed the Fulton County Clerk’s Office to
update his email address and remove an older email address from the system. He
noted that he has no problem receiving electronic filings from the alternative
electronic system, Odyssey.
In response, the office manager for Valette’s attorney averred that “on April
29, 2024, this office received an Order from the Court granting [Valette’s] Motion for
Summary Judgment and denying [RPI’s] cross-motion. ... The Order was filed and
served on this office via the e-file service ‘File & ServeExpress.’” He further averred
that the order was posted on April 29, 2024 on the public portal, Odyssey Portal.
9 Attached to the affidavit was a report from the ServeExpress system showing
that the order at issue was entered on April 29, 2024 and the recipients of the
documents, which included Valette’s attorney. Also attached was an email chain
between the trial court’s law clerk and the parties’ attorneys, including an email sent
on April 24, 2024 notifying them that “a [final] Order may be released any day now.”
The trial court’s re-entered order was entered on October 4, 2024. As to the
ruling on the motion to set aside the judgment, the trial court held, “As [RPI]
contends that it did not receive the prior Order and was unaware of the ruling until
after appellate rights had expired, it was requested in [RPI’s] Motion to Set Aside
Judgment that the Court vacate and re-enter the ruling. The entry of this Order
accordingly grants [RPI’s] motion to this extent. See generally OCGA § 9-11-5 (f)
(5).” (Emphasis omitted.) The trial court also made revisions to the order to correct
what RPI had asserted in its motion to set aside were factual mistakes subject to
OCGA § 9-11-60 (d).
[W]here the losing party is not served with a copy of the judgment then, to preserve his right of appeal, he may move under OCGA § 9–11–60 (g) to have the judgment set aside. Upon a finding that notice was not provided as required, the motion to set aside may be granted, the
10 judgment re-entered, and the thirty-day period within which the losing party must appeal will begin to run from the date of the re-entry.
North Druid Dev., 330 Ga. App. at 440 (citation and punctuation omitted); Young
Const. v. Old Hickory House #3, 210 Ga. App. 559, 561 (2) (b) (436 SE2d 581) (1993)
(“Under the Civil Practice Act, a judgment cannot be set aside, based upon OCGA
§ 9-11-60 (d), unless the grounds relied upon are unmixed with the negligence or fault
of the movant.”)
OCGA § 15-6-21 (c) provides that “it shall be the duty of the judge to file his
or her decision with the clerk of the court in which the cases are pending and to notify
the attorney or attorneys of the losing party of his or her decision.” And “[u]pon
filing, an electronically filed document is deemed served on all parties and counsel.”
Rule 36.16. (E). In considering the motion to set aside, “the trial court must first make
a finding regarding whether the duty imposed by OCGA § 15-6-21 (c) was met.” Id.
at 895 (citations and punctuation omitted). “Although OCGA § 15-6-21 refers to
notice for decisions made on motions, its logic also applies to final judgments. In the
instant case, the issue is not whether [RPI] had knowledge that the final judgment was
entered, but rather whether the duty imposed on the trial court in OCGA § 15-6-21
11 (c) was carried out.” Williams v. Medinger, 349 Ga. App. 807, 810 (3) (824 SE2d 800)
(2019). See also Wright v. Young, 297 Ga. 683, 684, n. 3 (777 SE2d 475) (2015) (same)
“OCGA § 15-6-21 (c) only requires that the trial court give notice to the losing party.
If the trial court has in fact given notice, then a motion to set aside may be properly
denied whether or not the losing party actually received the notice.” Id at 684 n. 3.
Here, pretermitting whether RPI did not in fact receive the final order when it
was entered on April 29, 2024, and had no knowledge that it had been entered until
almost two months later, in setting aside the April 29 order, the trial court improperly
applied the test in OCGA § 9-11-5 (f) (5) which creates a presumption relating to
pleadings, rather than to trial court judgments. RPI has not cited to any authority, and
we have found none, where Georgia courts have applied this provision to situations
in which a party claims that it did not receive a trial court’s order as support for a
motion to set aside. See North Druid Dev., 330 Ga. App. at 440 (noting that OCGA
§ 9–11–60 (g) allows a court to set aside a previously entered judgment in the event
the trial court failed to “serve a party with a copy of the judgment”).
To summarize, the trial court must first determine that it failed to meet its
obligation to provide notice under OCGA § 15-6-21 (c) with regard to the April 29
12 final order before granting or denying RPI’s motion to set aside. Irrespective of
whether RPI had knowledge that the final order had been entered, if the trial court
finds that it fulfilled its duty pursuant to OCGA § 15-6-21 (c), then the judgment
cannot be set aside. “If the court finds that [RPI] received no notice of the entry of the
[April 29, 2024 order], then the motion to set aside must be granted and that order
re-entered.” Pierce, 289 Ga. at 895 (2). See Williams, 349 Ga. App. at 811 (3)
(affirming the motion to set aside “[b]ecause the trial court found that it failed to meet
its notice requirements under with OCGA § 15-6-21 (c) with regard to the final
judgment, [and thus] it was authorized to grant Williams’s motion to set aside and
re-enter the final judgment.”).
Accordingly, we vacate the re-entered order and remand the case for the trial
court to apply the proper test in the review of RPI’s motion to set aside.
Case No. A25A0757
Because we have vacated the re-entered order and remanded the case for
further action, we have no jurisdiction to consider the merits of the re-entered order
13 which is the basis of this appeal. Thus, this appeal is dismissed as moot.
Judgment vacated and case remanded in Case No. A25A0758. Appeal dismissed in
Case No. A25A0757. Brown, C. J., and Watkins, J., concur.