COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70431 ASSET REALTY, INC. : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION BAHMAN GUYURON, M.D. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1996 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-275530 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: JACK N. GROSSMAN (#0024439) JACK N. GROSSMAN CO., L.P.A. 6240 MAYFIELD ROAD MAYFIELD HEIGHTS, OH 44124 For Defendant-Appellee: ROBERT S. PASSOV (#0015124) 75 PUBLIC SQUARE, SUITE 914 CLEVELAND, OHIO 44113 - 2 - SPELLACY, C.J.: Plaintiff-appellant Asset Realty, Inc. ("appellant") appeals the judgment of the trial court granting summary judgment in favor of defendant-appellee Bahman Guyuron, M.D. ("appellee") in this breach of contract claim. Appellant asserts the following assignment of error for our review: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. A complete review of the record reveals the following. On August 17, 1994, appellant filed its complaint alleging breach of contract, negligence, negligent misrepresentation and fraud on the part of appellee. On November 16, 1995, appellee filed his motion for summary judgment. Subsequently, appellant voluntarily dismissed its claim for negligent misrepresentation and fraud on February 27, 1996. Appellee's motion for summary judgment was granted by the trial court on February 29, 1996. I. The history of the case reveals that on April 1, 1992, appellant and appellee entered into an "Exclusive Right to Sell Agreement". The agreement related to the sale of appellee's fifteen suite apartment building located at 3730 Warrensville Center Road, Shaker Heights, Ohio. The exclusive right to sell agreement provided that the appellee would pay appellant a - 3 - commission of seven percent of the selling price in the event that either legal or equitable interest was sold or exchanged. Further- more, any commission due to appellant was to be paid upon the exe- cution of a land contract. The selling price of the property was listed at four hundred thirty-five thousand dollars ($435,000.00), or at any other price, terms, or exchange to which appellee may consent. The listing contract between appellant and appellee extended through October 2, 1992. On April 4, 1992, appellant procured a buyer, Dr. Maposure Miller, to purchase the aforementioned property. Subsequently, appellee and Dr. Miller entered into a purchase agreement for the sale of appellee's property for four hundred thousand dollars ($400,000.00). Under the sale contract all documents and funds necessary for the completion of the transaction were to be placed in escrow within fifty (50) days from the date of the acceptance of the offer. The transaction between appellee and Dr. Miller was subject to and contingent upon Dr. Miller's ability to assume the first mortgage from Freddie Mac Mortgage in the amount of three hundred thousand ($300,000.00) dollars within forty-five (45) days of the acceptance of appellee's offer. On June 9, 1992, appellee and Dr. Miller agreed to extend the closing date for an additional forty-five (45) days. On October 5, 1992, the parties agreed a second time to extend the contractual closing date to November 13, 1992. Subsequently, on November 2, 1992, appellee's attorney informed Dr. Miller that if the - 4 - transaction failed to close by November 13, 1992, no further extensions would be granted. However, appellee did reserve the right to re-negotiate should the circumstances warrant it. Dr. Miller, after November 13, 1992, continued to pursue financing for the purchase of appellee's apartment complex. On January 21, 1993, Metropolitan Savings Bank verbally informed Dr. Miller that Freddie Mac conditionally approved the assumption of the mortgage from appellee to Dr. Miller. (Miller, Depo., 50). Immediately after being informed of the approval, Dr. Miller contacted appellee's attorney. (Miller, Depo., 51). Appellee's attorney, however, informed Dr. Miller that they were going to sell to somebody else and that the contract between appellee and Dr. Miller was null and void. (Miller, Depo., 51). Appellee subsequently returned Dr. Miller's five thousand ($5,000.00) dollar down payment. Further, Dr. Miller was informed by Metropolitan Savings Bank on February 17, 1993, that the commitment letter with regard to the assumption of the mortgage had been cancelled due to the fact that no purchase agreement existed at the time. II. In its sole assignment of error, appellant contends that the trial court erred by granting appellee's motion for summary judgment. Specifically, appellant maintains that it has demonstrated that it procured a ready, willing and able buyer on terms acceptable to the appellee. - 5 - The test for granting a motion for summary judgment is set forth in Civ.R. 56 and in numerous cases interpreting the rule. The law is clear that: Summary judgment is appropriately rendered when no genuine issue as to any material fact remains to be litigated; the moving party is entitled to judgment as a matter of law; it appears from the evidence that reasonable minds can come but to one conclusion; and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Lovsin, et al. v. J.C. Penney Company, Inc. et al. (May 9, 1996), Cuyahoga App. No. 69520, unreported, citing to Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. In the instant case, appellee agreed to pay appellant a commission equal to seven (7%) percent of the sale price of the real property in the event that appellee located any purchaser who would pay a sale price acceptable to the appellee. "In the absence of a contractual provision to the contrary, a real estate broker is entitled to a commission under a contract to sell real property only if he procures a buyer who is 'ready, willing and able' to purchase the land or if he procures a buyer who enters into an enforceable land sale contract with the seller." Laronge, Inc. v. Bender (May 19, 1977), Cuyahoga App. No. 35552, unreported, p. 6- 7. Since there was no evidence of a special contractual provision, we must determine whether the appellee procured a ready, willing and able purchaser or a buyer who entered into an enforceable land sale contract with the seller. Appellant did not procure a purchaser who was ready, willing and able. A prospective purchaser is "able" to buy if he is able - 6 - to command the necessary funds to complete the purchase within the time allowed by the offer. Bender, supra. A person is not "ready, willing and able" to buy when he is dependent upon third parties who are in no way bound to furnish the funds to complete the purchase. Id. citing C.O. Frick Co. v. Baetzel (1942), 71 Ohio App. 301. Proof of ability to buy is established where the evidence shows that the purchaser has sufficient available assets or had arranged a loan by which he would have been able to consummate the deal on the date stipulated. Bender, supra citing Walton v. Hudson (1947), 82 Ohio App. 330. In the case sub judice, appellant procured Dr. Miller as a prospective purchaser of appellee's property. Subsequently, Dr. Miller entered into a purchase agreement with appellee for the purchase of 3730 Warrensville Center Road, Shaker Heights, Ohio. The purchase agreement between appellee and Dr. Miller provided that Dr. Miller would purchase the property for the sum of four hundred thousand ($400,000.00) dollars. The purchase agreement further set forth the following contingency: [t]his offer is contingent upon a first mortgage being made available to purchaser in the amount of $300,000.00 at no more than 10% per annum. If said financing cannot be made available to purchaser within 45 days from date of acceptance of this offer then this contract is to be declared null and void at buyer's option, and deposit in full to be refunded. The financing date set forth above, however, on two separate occasions, was extended by agreement of the parties, and closing of the transaction was to occur by November 13, 1992. Furthermore, - 7 - Dr. Miller was informed by appellee on November 2, 1992, that should the transaction not be closed by November 13, 1992, no further extensions would be granted by appellee. In the present case, appellant has presented no evidence that Dr. Miller, its prospective purchaser, had the necessary money to complete the purchase. Nor was there evidence that Dr. Miller had a loan commitment from a third party to furnish the funds. To the contrary, the evidence presented demonstrated that Dr. Miller was still in the process of assuming the mortgage from Freddie Mac and obtaining a loan from Metropolitan Savings Bank. Since the evidence demonstrates that Dr. Miller neither had the necessary money, nor had a loan commitment to furnish the funds, Dr. Miller was not "ready, willing and able." The law is clear that the record must demonstrate that the broker procured a ready, willing and able buyer before the court can find that the broker performed its part of the broker's agreement. See T.C. Wells Realty v. Kucharski, et al. (May 28, 1992), Cuyahoga App. No. 60383, unreported; Chagrin Valley Realty Co. v. Motorcars P-A, Inc. (March 3, 1994), Cuyahoga App. No. 65707, unreported. We have reviewed the record and find no evidence which demonstrates that Dr. Miller was ready, willing and able. Accordingly, appellant's assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant his costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, J. and TIMOTHY E. McMONAGLE, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .