In this breach of contract action brought by Network Billing Systems against American Teleconferencing Services ATS, ATS appeals the trial court’s order granting in part and denying in part the parties’ respective motions for summary judgment. ATS maintains that the court should have granted its motion for summary judgment in toto and should have denied Network’s corresponding summary judgment motion in toto; specifically, ATS argues that since the court determined that the minimum monthly commitment provision in the parties’ contract was unenforceable, and since that was the only contract provision allegedly breached, the court should have entered summary judgment in its favor on all counts. We hold i that the court erred in ruling the minimum monthly commitment provision unenforceable and ii that the breach of contract count therefore survives on that claim, but iii that the court erred in denying summary judgment on the other counts. Accordingly, we affirm in part and reverse in part. Summary judgment is only 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. A de novo standard of review applies to an appeal from a denial of summary judgment. Matjoulis v. Integon Gen. Ins. Corp .1
The material facts are undisputed. On August 1, 2003, Network a reseller of teleconferencing services contracted with ATS’s predecessor for a period of 12 months to provide teleconferencing circuits and related services to that predecessor and its customers at specified rates. The predecessor agreed that i the term of the agreement would automatically extend another 12 months if the predecessor did not give notice of non-renewal at least 30 days prior to the expiration of the first term, and ii the predecessor committed to a minimum monthly usage volume of $50,000, with the proviso that if its usage charges for a particular month were less than $50,000, it would “be billed an amount equal to the shortfall amount in addition to the actual monthly usage charges so that the total usage related charges” would equal $50,000. Finally, the parties agreed that at the end of each 12-month period, Network would credit the predecessor’s account “equal to any shortfall amounts billed over the previous 12 months if the average actual usage amounts billed over that period exceeded” $50,000.
