Reynolds Properties, Inc., d/b/a Coldwell Banker Lake Oconee Realty “Coldwell” sued Bruce A. Bickelmann “Bickelmann” seeking its commission on a real estate transaction that failed to close. Following a hearing on cross-motions for summary judgment, the trial court granted Bickelmann’s motion and denied that of Coldwell. Coldwell now appeals. Finding that Coldwell’s claim lacks a basis in the contracts of the parties, we affirm.1 To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law OCGA § 9-11-56 c. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case. . . . Our review of an appeal from summary judgment is de novo. Citations, punctuation, and emphasis omitted. Mohamud v. Wachovia Corp. , 260 Ga. App. 612 580 SE2d 259 2003. The undisputed facts show that Mary and Larry New entered into a Georgia Association of Realtors “GAR” “Exclusive Seller Listing Agreement” the “Listing Agreement” with Coldwell, a real estate broker, to list the News’ lake house the “Property” for sale. The Listing Agreement provided, in part, that “Seller agrees to pay Broker at closing a commission . . . of 7 percent of the sales price of the Property. . . . Broker shall share the Commission with a cooperating broker . . . who procures the buyer of Property by paying such cooperating broker 3.5 percent 3.5 of the sales price of Property . . . .” Further, the Listing Agreement provided: In the event Seller sells or contracts to sell Property to any buyer introduced to Property by Broker within 180 days after the expiration of the Listing Period, then Seller shall pay the commission referenced above to Broker at the closing of the sale or exchange of Property. Notwithstanding the above, in the event that Property is sold to the prospective buyer by or through another licensed broker with whom Seller has signed an exclusive right to sell listing agreement, then no commission shall be owed to Broker by virtue of this Agreement. The commission obligations set forth herein shall survive the termination of this Agreement. The News’ house had been on the market for nearly a year when, on March 24, 2007, Bruce A. Bickelmann entered into a GAR “Purchase and Sale Agreement” the “Contract” with the News and Coldwell to purchase the Property for $985,000. Paragraph 16 B of the Contract provided, among other things, that
in the event the sale is not closed because of Buyers and/or Sellers failure or refusal to perform any of their obligations herein, the nonperforming party shall immediately pay the Brokers the full commission the Brokers would have received had the sale closed, and the Selling Broker and Listing Broker may jointly or independently pursue the non-performing party for their portion of the commission. Closing on the Property was scheduled for July 30, 2007. In the interim, however, Bickelmann “decided not to complete the transaction” and executed a standard form GAR “Termination and Release Agreement” which his realtor, Jack Shortridge, presented to the News. The Termination and Release Agreement declared the following:
