Full opinion text
MEMORANDUM OPINION AND ORDER GEORGE J. LIMBERT, United States Magistrate Judge. The above-captioned case is before the Court on Defendant Rogers Group, Inc.’s (“Defendant” or “RGI”) Motion for Summary Judgment. ECF Dkt. # 122. The instant matter involves diversity claims by Plaintiff for breach of contract (Count I) and for promissory estoppel (Count II). ECF Dkt. # 1. Defendant seeks summary judgment on Counts I and II. For the following reasons, the Court GRANTS Defendant’s motion and enters judgment in favor of Defendant on both Counts I and II: I. JURISDICTION This case involves an alleged breach of a purported contractual agreement between Hardrives Paving & Construction, Inc. (“Hardrives”) and Defendant. Plaintiff sues as a successor in interest to Hardrives. ECF Dkt. # 1 at ¶ 1. Diversity jurisdiction is appropriate pursuant to 28 U.S.C. § 1332 because: Plaintiff Cranpark, Inc. is a business that was duly organized and existed under the laws of the State of Ohio and had a principal place of business at 3550 Union Street, Mineral Ridge, Ohio, 44440; Defendant is a corporation organized under the laws of the state of Indiana, with a principal place of business at 421 Great Circle Road, Nashville, Tennessee, 37228; and the amount in controversy exceeds $75,000. ECF Dkt. # 1 at ¶¶ 1-3, # 14 at ¶¶ 1-2, 3. Defendant initially contended that Plaintiff was not a successor in interest to Hardrives and that Plaintiff was not a real party in interest in this case. ECF Dkt. # 14 at ¶ 1. In its brief in support of its motion for summary judgment, Defendant concedes that Plaintiff is a successor in interest to Hardrives. ECF Dkt. # 122 at 11-13, citing James Sabatine Dep. (ECF Dkt. # 122, Ex C; see also ECF Dkt. # 125 Attach. # 2 (hereinafter “Sabatine Dep.”)). Since Mr. Sabatine’s deposition provides factual support for the proposition that Cranpark is a successor in interest to Hardrives’ contract with Defendant, the Court finds that Plaintiff has standing to pursue its claim against Defendant. See Sabatine Dep. at 8-18. Defendant has also denied that the amount in controversy exceeds $75,000. ECF Dkt. # 14 at ¶ 2. The Court finds that the jurisdictional element is satisfied because Plaintiff avers that it has suffered damages in the amount of $10,000,000 as a result of a breach of contract and a good-faith basis exists for that claim — at least for an amount in excess of $75,000. ECF Dkt. # 1 at 7. The Sixth Circuit has held that jurisdiction fails only where a legal certainty exists that a claim is for less than $75,000. Kovacs v. Chesley, 406 F.3d 393, 395 (6th Cir.2005) citing St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938). The Kovacs court held that a woman satisfied the amount in controversy requirement where: (1) the damages alleged amounted to $100,000; (2) there was a legal basis for her claim; and (3) there was “some chance” that she could recover the amount claimed. Kovacs, 406 F.3d at 395. The court explained that “ultimate loss on the merits, even if based on a legal argument that is clear from the outset, is not enough to preclude jurisdiction, where the claim is apparently in good faith.” Id. In sum, “the test for whether the jurisdictional amount has been met considers whether the plaintiff can succeed on the merits in only a very superficial way.” Id. at 396. Here, there is some chance that Plaintiff could recover because it has alleged a breach of contract, produced a writing, and alleged damages precipitating from the breach. The law could permit recovery for the type of damages claimed in an amount exceeding $75,000, and the facts alleged can support those damages. See Kovacs, 406 F.3d at 397. Therefore, the amount in controversy is satisfied in this case and diversity jurisdiction exists. II. SYNOPSIS OF THE FACTS James Sabatine owned an asphalt paving company named Hardrives Paving and Construction, Inc. ECF Dkt. # 122 at 3; # 125 at 4. Hardrives was located in Mineral Ridge, Ohio. Id. RGI produces and distributes construction aggregate. ECF Dkt. # 122 at 3; # 125 at 4. At the time of the events of this case, RGI had a large surface limestone quarry near Sandusky, Ohio. Id. RGI shipped the aggregate by rail to three rail-to-truck distribution terminals. Id. In other words, the aggregate would be delivered by rail from the Sandusky quarry to the distribution center, where it was loaded onto trucks. Id. Plaintiff contends that RGI had another site in Macedonia, Ohio, which had only truck-to-truck service, and aggregate had to be trucked in from San-dusky at a higher cost than if it could be shipped by rail. ECF Dkt. # 125 at 4-5. This assertion is important because the Plaintiff ultimately contends that Defendant breached a purported agreement in favor of obtaining rail access at its Macedonia site. See ECF Dkt. # 125 at 15-18. The parties agree that RGI had no presence in the Youngstown area. ECF Dkt. #122 at 3; #125 at 5. The parties disagree as to when they first discussed any prospective deal. See ECF Dkt. # 122 at 4; # 125 at 6. They do agree that Hardrives president James Sabatine and RGI Sales representative Tom Stump met with each other at a Flexible Pavements convention in Columbus, Ohio in March, 1998. Id. Mr. Sabatine and Mr. Stump discussed the possibility of shipping aggregate to Hardrives in the Youngstown region. Id. Plaintiff contends that the Mr. Sabatine and Mr. Stump then attended a dinner meeting to further discuss the idea. ECF Dkt. # 125 at 6. Plaintiff contends that Mr. Stump’s colleague, Brian Petit, and Mr. Sabatine’s business associate, Tom Petra-ca, also attended the dinner. Id. Plaintiff contends that the four men discussed logistics and potential of establishing a rail-supplied aggregate distribution terminal and asphalt plant in the Youngstown area. Id. at 6-7. Plaintiff contends that the meeting was quite productive and that Mr. Stump was anxious to have more substantial conversations with Mr. Sabatine. Id. at 7. Plaintiff contends that “Stump was the point man for RGI on the development of the partnership with Hardrives.” ECF Dkt. # 125 at 7 citing Stump. Dep. at p. 65, 1. 1-3. Mr. Stump actually testified that he was the point man on the “project” with Hardrives. See Thomas Stump Dep. (ECF Dkt. # 125, Attach. # 4 (hereinafter “Stump Dep.”)) at p. 65,1. 1-3. Defendant admits that Mr. Stump met with Mr. Sabatine on several occasions after the trade show. ECF Dkt. # 122 at 4. The parties agree that Mr. Stump and Mr. Sabatine subsequently discussed economics, rail access, potential sites, and rail rates. ECF Dkt. # 122 at 4-5; # 125 at 7-9. The parties further agree that on September 1, 1998, Mr. Sabatine and Greg Gould met. ECF Dkt. # 122 at 6; # 125 at 9. At that time, Greg Gould was the vice president and general manager for northern Ohio for Rogers Group. Gregory Gould Dep. (ECF Dkt. # 125 Attach. # 3 (hereinafter “Gould Dep.”)) at p. 9 1. 25-p. 10 1. 3. During the meeting, Mr. Sabatine signed a document on behalf of Hardrives and Mr. Gould signed a document on behalf of RGI. Id. Plaintiff characterizes this document as a contract. ECF Dkt. # 125 at 9. Defendant characterizes the document as an incomplete and conditional writing. ECF Dkt. # 122 at 6. The September 1, 1998 writing is roughly reproduced, as follows: This agreement is between Hardrives Paving + Const Inc and the Rodgers [sic] Group. 9/1/98 @ 4.00 or less total rai [sic] include’s [sic] cars #8 - 8.50 #57 - 8.50 #9 - 7.50 sand - 7.50 # 804- 7.50 1 minimum 210k tons SUBJECT TO RGI SR. MGT. APPROVAL .50e Royalty on all non-Hardrives Sales Free land 5 yr min tax abate. No improve to rail included. ECF Dkt. # 122, Ex. 1 (“September 1, 1998 writing”). Defendant contends that neither Mr. Gould nor Mr. Stump remember the phrase “This agreement is between Hardrives Paving + Const Inc and the Rodgers [sic] Group” being on the document when the writing was made. ECF Dkt. # 122 at 6-7. The parties go on to discuss the events occurring after they signed the September 1,1998 writing. See ECF Dkt. # 122 at 8-9; # 125 at 10-13. While they essentially agree that representatives from RGI and Hardrives interacted, the parties characterize those interactions differently. Plaintiff contends that the parties began working toward fulfilling the terms of “the agreement.” See ECF Dkt. # 125 at 10-13. Defendant contends that the parties continued their “preliminary negotiations.” ECF Dkt. # 122 at 8-9. Defendant asserts that Mr. Sabatine ordered a $1,500,000.00 asphalt plant on December 15, 1998 and began entering bids on prices set forth in the September 1, 1998 writing. ECF Dkt. # 125 at 13. The parties agree that Mr. Stump and Mr. Sabatine met in February of 1999. ECF Dkt. #122 at 10; #125 at 13-14. Plaintiff contends that Mr. Stump advised Mr. Sabatine that RGI was walking away from the deal ECF Dkt. # 125 at 14. Defendant acknowledges that Mr. Stump provided Mr. Sabatine with higher quotes than the September 1, 1998 writing set forth. ECF Dkt. # 122 at 10. The parties agree that Mr. Sabatine sent Mr. Gould a letter on March 9, 1999 requesting a material quote. ECF Dkt. # 122 at 10; # 125 at 14. The parties further agree that Mr. Gould responded by letter on March 11, 1999, stating that the September 1, 1998 writing was not a contract. ECF Dkt. # 122 at 11; # 125 at 14. Mr. Sabatine responded with a letter dated April 27, 1999, stating that Hardrives would suffer lost revenue due to RGI backing out of the “agreed upon deal”. ECF Dkt. # 122 at 10, Ex. 10; # 125 at 14-15. On October 30, 2000, Samuel Rapczak, RGI’s senior vice president of the central region sent a letter to Mr. Sabatine reaffirming that RGI “is not interested in the Center street project, and [has] no contractual obligation ...” ECF Dkt. # 125, Ex. 30. Plaintiff contends that it later discovered that Defendant breached the agreement because “RGI decided to ditch the Hardrives deal and negotiate a separate deal with Norfolk Southern for rail access to RGI’s Macedonia distribution terminal.” ECF Dkt. # 125 at 17-18. Defendant notes that Hardrives eventually took possession of the asphalt plant that it ordered on December 15, 1998. ECF Dkt. # 122 at 11. Defendant notes that Hardrives thereafter sold the plant, and Cranpark became the successor to what was left of Hardrives. Id. at 12. Defendant contends that Cranpark sued Cederapids for various claims related to the manufacture of the asphalt plant and that the allegations regarding causation and damages were similar to the allegations in this case. Id. III. PERTINENT PROCEDURAL HISTORY On September 8, 2004, Plaintiff filed the instant suit as Hardrives’ successor in interest. ECF Dkt. # 1. The complaint alleges claims of breach of contract (Count I) and promissory estoppel (Count II). Id. On February 8, 2010, Defendant filed the instant motion, seeking summary judgment on both counts of the complaint. ECF Dkt. #122. On March 10, 2010, Plaintiff filed a brief in opposition. ECF Dkt. # 125. On March 24, 2010, Defendant filed a reply. ECF Dkt. # 128. This matter is scheduled for a jury trial on August 30, 2010. ECF Dkt. ## 129, 130. IV. STANDARD OF REVIEW The function of summary judgment is to dispose of claims without trial when one party is unable to demonstrate the existence of a factual dispute which, if present, would require resolution by a jury or other trier of fact. Schultz v. Newsweek, Inc., 668 F.2d 911, 918 (6th Cir. 1982). Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party moving for summary judgment has the burden of showing there exists no genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). This burden can be discharged by showing that the nonmoving party has failed to establish an essential element of his case, for which he bears the ultimate burden of proof at trial. See e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Morales v. Am. Honda Motor Co., Inc., 71 F.3d 531, 535 (6th Cir.1995). The evidence and all the inferences that can reasonably be drawn therefrom must be read in the light most favorable to the nonmoving party. Id. If the moving party meets his burden, the nonmoving party must take affirmative steps to avoid the entry of a summary judgment. See Fed.R.Civ.P. 56(e). To refute such a showing, the nonmoving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. A mere scintilla of evidence is not enough. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In ruling on a motion for summary judgment, the court is not obligated to wade through and search the entire record for some specific facts that might support the nonmoving party’s claim. InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989). Therefore, in determining whether a genuine issue of material fact exists on a particular issue, a court is entitled to rely only upon those portions of the record specifically called to its attention by the parties. Staats v. United States, No. C-3-99-174, 2001 WL 1135056, *3 (S.D.Ohio Mar. 12, 2001), unreported; InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990). V. LAW AND ANALYSIS Defendant contends that it is entitled to summary judgment on Plaintiffs breach of contract and promissory estoppel claims because: (1) there is no enforceable contract in this case; (2) if there were a contract, Plaintiffs breach of contract claim would be barred by the Ohio Uniform Commercial Code; and (3) there was no clear and unambiguous promise and Plaintiffs purported reliance on Defendant’s representations was unreasonable. ECF Dkt. # 122. The Court finds that genuine issues of material fact exist as to whether a meeting of the minds occurred and whether conditions related to the purported contract were satisfied. Therefore, summary judgment cannot be entered on the basis that no enforceable contract was in place. However, the Court also finds that the September 1, 1998 writing is governed by the Ohio Uniform Commercial Code and Plaintiffs breach of contract claim is barred by the 4-year statute of limitations. Accordingly, summary judgment is appropriate on Count I (breach of contract). Lastly, the Court finds that the writing and the evidence presented do not establish that Plaintiff made a clear and unambiguous promise upon which Plaintiff could reasonably rely. Therefore, summary judgment is appropriate on Count II (promissory estoppel) as well. A. Review of Ohio Contract Law The writing at issue in this case does not include a choice of law provision. See ECF Dkt. # 122, Ex. 1. It is undisputed that the place of contracting, performance, and subject matter of the contract was in Ohio. Therefore, Ohio law applies. See Spengler v. ADT Sec. Services, Inc., 505 F.3d 456, 457 (6th Cir.2007) citing Restatement (Second) of Conflict of Laws, § 188(2) (1971). The Court looks to recent Sixth Circuit precedent for a summary of the general principles of Ohio contract law: Under Ohio law, the interpretation of written contract terms, including the determination of whether those terms are ambiguous, is a matter of law for initial determination by the court. Parrett v. Am. Ship Bldg. Co., 990 F.2d 854, 858 (6th Cir.1993) (applying Ohio law); Potti v. Duramed Pharmaceuticals, Inc., 938 F.2d 641, 647 (6th Cir.1991) (applying Ohio law); see also Inland Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271, 272-73 (1984) (“If a contract is clear and unambiguous, then its interpretation is a matter of law and there is no issue of fact to be determined. However, if a term cannot be determined from the four corners of a contract, factual determination of intent or reasonableness may be necessary to supply the missing term.”). “The role of courts in examining contracts is to ascertain the intent of the parties.” City of St. Marys v. Auglaize Cty. Bd. of Commrs., 115 Ohio St.3d 387, 875 N.E.2d 561, 566 (2007). “The intent of the parties is presumed to reside in the language they choose to use in their agreement.” Graham v. Drydock Coal Co., 76 Ohio St.3d 311, 667 N.E.2d 949, 952 (1996); accord State ex rel. Petro v. R.J. Reynolds Tobacco Co., 104 Ohio St.3d 559, 820 N.E.2d 910, 915 (2004). “Where the terms in a contract are not ambiguous, courts are constrained to apply the plain language of the contract.” City of St. Marys, 875 N.E.2d at 566; accord Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146, 150 (1978) (“[Wjhere the terms in an existing contract are clear and unambiguous, this court cannot in effect create a new contract by finding an intent not expressed in the clear language employed by the parties.”). However, “[ejxtrinsic evidence is admissible to ascertain the intent of the parties when the contract is unclear or ambiguous, or when circumstances surrounding the agreement give the plain language special meaning.” Graham, 667 N.E.2d at 952; accord R.J. Reynolds, 820 N.E.2d at 915. Nevertheless, a court “is not permitted to alter a lawful contract by imputing an intent contrary to that expressed by the parties” in the terms of their written contract. Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 797 N.E.2d 1256, 1261-62 (2003). Contractual language is ambiguous “only where its meaning cannot be determined from the four corners of the agreement or where the language is susceptible of two or more reasonable interpretations.” Covington v. Lucia, 151 Ohio App.3d 409, 784 N.E.2d 186, 190 (2003) (quoting Potti, 938 F.2d at 647); see also King v. Nationwide Ins. Co., 35 Ohio St.3d 208, 519 N.E.2d 1380, 1383 (1988); United States Fid. & Guar. Co. v. St. Elizabeth Med. Ctr., 129 Ohio App.3d 45, 716 N.E.2d 1201, 1208 (1998). “[CJourts may not use extrinsic evidence to create an ambiguity; rather, the ambiguity must be patent, i.e., apparent on the face of the contract.” Covington, 784 N.E.2d at 190. In determining whether contractual language is ambiguous, the contract “must be construed as a whole,” Tri-State Group, Inc. v. Ohio Edison Co., 151 Ohio App.3d 1, 782 N.E.2d 1240, 1246 (2002) (quoting Equitable Life Ins. Co. of Iowa v. Gerwick, 50 Ohio App. 277, 197 N.E. 923, 926 (1934)), so as “to give reasonable effect to every provision in the agreement.” Stone v. Nat’l City Bank, 106 Ohio App.3d 212, 665 N.E.2d 746, 752 (1995); see also Burris v. Grange Mut. Co., 46 Ohio St.3d 84, 545 N.E.2d 83, 88 (1989) (“The meaning of a contract is to be gathered from a consideration of all its parts, and no provision is to be wholly disregarded as inconsistent with other provisions unless no other reasonable construction is possible.” (quoting Karabin v. State Auto. Mut. Ins. Co., 10 Ohio St.3d 163, 462 N.E.2d 403, 406 (1984))). “[CJommon words appearing in the written instrument are to be given their plain and ordinary meaning unless manifest absurdity results or unless some other meaning is clearly intended from the face or overall contents of the instrument.” Alexander, 374 N.E.2d at 150. If the language in the contract is ambiguous, the court should generally construe it against the drafter. See Central Realty Co. v. Clutter, 62 Ohio St.2d 411, 406 N.E.2d 515, 517 (1980); Mead Corp. v. ABB Power Generation, Inc., 319 F.3d 790, 798 (6th Cir.2003) (applying Ohio law). In particular, “where the written contract is standardized and between parties of unequal bargaining power, an ambiguity in the writing will be interpreted strictly against the drafter and in favor of the non-drafting party.” Westfield, 797 N.E.2d at 1261. However, this contra proferentem rule does not allow a court to adopt an unreasonable interpretation of the contract. Id. (citing Morfoot v. Stake, 174 Ohio St. 506, 190 N.E.2d 573, 574 (1963)). Indeed, the purpose of the contra proferentem rule is to provide a means of determining which of two reasonable contractual interpretations should control. See Restatement (Second) of Contracts § 206 (1981) (“In choosing among the reasonable meanings of a promise or agreement or a term thereof, that meaning is generally preferred which operates against the party who supplies the words or from whom a writing otherwise proceeds.” (emphasis added)). If the contract is silent, as opposed to ambiguous, with respect to a particular matter, see Statler Arms, Inc. v. AP-COA Inc., 92 Ohio Misc.2d 45, 700 N.E.2d 415, 421 (1997) (“The fact that a contract ... is silent on a particular point does not make it ambiguous.”), “it is not the function of courts in Ohio to formulate a new contract for the parties.” Fultz & Thatcher v. Burrows Group Corp., No. CA2005-11-126, 2006 WL 3833971, at *6 (Ohio Ct.App. Dec. 28, 2006) (unpublished) (citing Aultman Hosp. Ass’n v. Comm. Mut. Ins. Co., 46 Ohio St.3d 51, 544 N.E.2d 920, 924 (1989)). Rather, “[t]he parties to a contract are required to use good faith to fill the gap of a silent contract.” Burlington Res. Oil & Gas Co. v. Cox, 133 Ohio App.3d 543, 729 N.E.2d 398, 401 (1999); accord Myers v. Evergreen Land Dev. Ltd., No. 07 MA 123, 2008 WL 650774, at *5 (Ohio Ct.App. Mar. 6, 2008) (unpublished) (“An obligation of good faith generally arises only where a matter was not resolved explicitly by the parties.... [T]his duty is implied only under limited circumstances, such as when the contract is silent as to an issue. In such a case, the parties must use good faith in filling the gap.”). “ ‘Good faith’ is a compact reference to an implied undertaking not to take opportunistic advantage in a way that could not have been contemplated at the time of drafting, and which therefore was not resolved explicitly by the parties.” Ed Schory & Sons, Inc. v. Soc. Nat’l Bank, 75 Ohio St.3d 433, 662 N.E.2d 1074, 1082-83 (1996) (quoting Kham & Nate’s Shoes No. 2, Inc. v. First Bank of Whiting, 908 F.2d 1351, 1357-58 (7th Cir.1990)). “What the duty of good faith consists of depends upon the language of the contract in each case which leads to an evaluation of reasonable expectations of the parties.” Fultz & Thatcher, 2006 WL 3833971, at *6. Savedoff v. Access Group, Inc., 524 F.3d 754, 763-64 (6th Cir.2008). In Ohio, the fundamental elements of a breach of contract claim include: (1) the existence of a contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4) damage or loss to the plaintiff as a result of the breach. Savedoff, 524 F.3d at 762 (as to duty, breach, and damages); Telxon Corp. v. Smart Media of Delaware, Inc., 2005 WL 2292800 at *37 (Ohio App. 9 Dist. Sept. 21, 2005), unreported (as to causation); Metropolitan Life Ins. Co. v. Triskett Illinois, Inc., 97 Ohio App.3d 228, 646 N.E.2d 528, 533 (1st Dist 1994) (as to causation). B. COUNT I: Contract Claim Analysis i. Summary of Analysis Defendant argues that Plaintiffs breach-of-contract claim should fail because there was no meeting of the minds. ECF Dkt. # 122 at 15-18. Defendant reasons that the conduct of the parties evidences only preliminary discussions and negotiations. Id. at 17. Specifically, Defendant contends that: The parties’ preliminary discussions never reached a formal contract here. The conduct Sabatine contends is evidence of an implied contract is nothing more than enthusiastic negotiations. So it makes no difference if the parties worked hard, negotiated with railroads, rented jets, or attended meetings in different cities if, in the end, those negotiations and meetings did not result in a meeting of the minds. The prices contained in the September 1 writing also represent nothing more than preliminary negotiations. Merely because Sabatine subjectively thought this writing was an enforceable contract does not make it so. Instead, “the binding force of [a] document depends on public or shared expressions.” See Sky-com Corp. v. Telstar Corp., 813 F.2d 810, 814-15 (7th Cir.1987) (finding a letter containing conditional terms was not an enforceable contract; “secret hopes and wishes count for nothing”). * * * Gould testified that RGI — a sophisticated business entity — would never agree to terms written as part of a “napkin contract” and that Sabatine was aware that RGI required a formally executed contract. Gould dep. at 69, Exh. B.” ECF Dkt. # 122 at 17-19. Defendant further contends that “It is well established that when parties anticipate a formal, definitive contract and that contract is never formalized, the parties’ earlier oral representations do not create an enforceable contract.” ECF Dkt. # 122 at 19. The Court disagrees with that conclusion. As one Ohio court explained: Appellant contends, however, that appellee has failed to produce any agreement signed by the parties, thereby evincing that no agreement was ever reached. However, “[pjarties to a contract may be bound by their oral agreements although they contemplate executing a final written agreement containing all of the provisions upon which they agreed.” Cleveland School District v. Cleveland Teachers Union (1980), 68 Ohio App.2d 118, 124, 427 N.E.2d 540 (Patton, J., concurring.) See, also, Ciaramella v. Reader’s Digest Assn., Inc. (C.A.2, 1997), 131 F.3d 320, 322 (“parties are free to bind themselves orally, and the fact that they contemplate later memorializing their agreement in an executed document will not prevent them from being bound by the oral agreement”). Further, “[t]he question of whether the parties intended to be bound prior to the execution of the formal written contract is a question of intent and an issue of fact.” Cleveland School Dist., supra, at 124, 427 N.E.2d 540. Dehoff v. Veterinary Hosp. Operations of Cent. Ohio, Inc., No. 02AP-454, 2003 WL 21470388 at *9 (Ohio App. 10 Dist., June 26, 2003). In this case, however, a written document exists, and the parties’ intent is presumed to reside in that document. See Graham, 667 N.E.2d 949, 952. Therefore, the Court must first examine the writing to determine if a meeting of the minds occurred. Defendant has failed to show that no genuine issues of material fact exist pertaining to the parties’ intent in signing the September 1, 1998 writing because the document contains the essential terms of an agreement to sell goods and because it presents ambiguities related to conditions precedent. See Alligood v. Procter & Gamble Co., 72 Ohio App.3d 309, 594 N.E.2d 668, 669 (Ohio App. 1 Dist.,1991) (“[a] valid contract must also be specific as to its essential terms, such as the identity of the parties to be bound, the subject matter of the contract, consideration, a quantity term, and a price term.”). Therefore, genuine issues of material fact exist and the Court cannot enter summary judgment on the basis that no meeting of the minds occurred. Since the September 1, 1998 writing contains essential terms of a contract, it is largely immaterial how Defendant normally transacts its business, absent an express condition in the writing. The only clear condition was that the agreement was subject to RGI senior management approval. As discussed below, the presence of that condition determines that there was no meeting of the minds when the parties signed the agreement. However, an officer, such as Mr. Gould, has the authority to bind a company to exercise good faith in considering an offer or a conditioned writing where the company has direct influence over the fulfillment of a condition precedent. See Johnston v. Cochran, 2007 WL 2421821 at *3 (Ohio App. 10 Dist. Aug. 28, 2007), unreported; Kebe v. Nutro Mach. Corp. 30 Ohio App.3d 175, 507 N.E.2d 369, 373 (8th Dist.1985); Hollingsworth v. Range Resources-Appalachia, LLC, No. 3:09ev838, 2009 WL 3601586 at *1, *10 (M.D.Pa., Oct. 28, 2009) slip op., discussed infra. As discussed below, there is no evidence before this Court that RGI senior management ever considered approving the September 1, 1998 writing. Therefore, the senior management approval condition does not necessitate summary judgment. Aside from the contractual language requiring senior management approval, the only evidence upon which Defendant relies to demonstrate that Plaintiff would know that RGI did not finalize deals on a napkin is Mr. Gould’s own deposition testimony. ECF Dkt. #122 at 17-19 citing Gould Dep. at 69-70; See Comfort Trane Air Conditioning Co. v. Trane Co., 592 F.2d 1373, 1383 (5th Cir.1979) (“Unsupported, self-serving testimony is not substantial evidence sufficient to create a jury question.”) cited with approval in Brooks v. American Broadcasting Companies, Inc., 999 F.2d 167 (6th Cir.1993) (Mr. Gould’s testimony is self-serving for RGI because he is the Federal Rule of Civil Procedure 30(b)(6) representative). Irrespective of RGI’s internal policies, when representatives of Hardrives and RGI signed a document containing essential terms, objective evidence can support a reasonable finding that a contract had been formed. Although Defendant generally contends that the evidence in this case falls short of demonstrating an intention to contract, Defendant has not made a factually specific showing that a reasonable interpretation of the writing and, if necessary extrinsic evidence of the parties’ intent, would permit but one result — that no meeting of the minds occurred. In fact, Defendant contends that the proposal was conditioned on obtaining a particular parcel of land and on obtaining rail access. See ECF Dkt. # 122 at 18; 128 at 6. Neither of those terms appear clearly and unambiguously in the September 1, 1998 writing. Therefore, genuine issues of material fact exist pertaining to the issue of whether a meeting of the minds occurred. Defendant also contends that the September 1, 1998 writing is governed by the Ohio Uniform Commercial Code (“UCC”), which provides that a four year statute of limitations applies to claims based upon contracts for the sale of goods. ECF Dkt. # 122 at 22-26 citing O.R.C. § 1302.98(A). The Court finds this argument to be compelling because the predominant purpose of the September 1, 1998 writing was to enable the sale of goods to Plaintiff. Thus, the four year statute of limitations applies. Plaintiff filed the instant suit more than four years after the breach of contract claim accrued. Therefore, Plaintiffs claim is time-barred and summary judgment is appropriate. ii. Essential terms The Court finds that Defendant has failed to demonstrate that all of the evidence, construed in the light most favorable to Plaintiff, could not establish that a meeting of the minds has occurred. See Telxon, 2005 WL 2292800 at *15 (as to standard of review). Defendant’s opening brief contends that: Viewed objectively, no meeting of the minds ever occurred as to essential terms, nor were those terms sufficiently definite to be enforceable. On the contrary, the parties worked — and worked hard — toward an enforceable contract that did not come to fruition. And an indefinite, conditional writing only confirmed that there was no meeting of the minds or mutual assent necessary to form an enforceable contract. ECF Dkt. # 122 at 15. Defendant’s argument fails to acknowledge that two representatives with at least apparent authority endorsed the September 1, 1998 writing and the writing identified the subject matter, prices, term, and a quantity. “To prove the existence of a contract, a party must establish the essential elements of a contract: an offer, an acceptance, a meeting of the minds, an exchange of consideration, and certainty as to the essential terms of the contract.” Juhasz v. Costanzo, 144 Ohio App.3d 756, 761 N.E.2d 679, 684 (7 Dist., 2001). Further, “[a] valid contract must also be specific as to its essential terms, such as the identity of the parties to be bound, the subject matter of the contract, consideration, a quantity term, and a price term.” Alii good v. Procter & Gamble Co., 72 Ohio App.3d 309, 594 N.E.2d 668, 669 (1 Dist., 1991). Contrary to Defendant’s assertion, the essential terms are present in the September 1,1998 -writing. Here, the identities of the parties are not in dispute, both Plaintiff and Defendant acknowledge that James Sabatine executed the document on behalf of Hardrives and Greg Gould executed the document on behalf of RGI. Sabatine Dep. at p. 40,1. 13-16; Stump Dep. at p. 121, 1. 5-7, p. 122, 1. 17-21; Gould Dep. at p. 68, 1. 2-8. The consideration is a promise to buy and a promise to sell aggregate; however, Defendant contends that the writing was a “concept with contingencies.” The Court acknowledges that at least one condition attached to the terms of the September 1, 1998 writing, but if that condition were satisfied, then Defendant could have been bound to fulfill a promise to sell aggregate. Thus, a concept with contingencies is nothing more than a conditional offer, which will be discussed further below. ECF Dkt. # 122, Ex. 1. The subject matter and quantity of the purported agreement are identified as a minimum of 210,000 tons of various types aggregate, and the price is specified according to a schedule. ECF Dkt. # 122, Ex. 1. Given the foregoing, the Court finds that the September 1, 1998 writing contains the essential terms that could be construed as necessary for a binding contract. iii. Senior management approval language Despite the foregoing finding that the writing contains essential terms, the Court acknowledges that many ambiguities exist in the September 1, 1998 writing. Defendant contends that the writing at issue contains multiple conditions that were not fulfilled. ECF Dkt. #122 at 19. The Court agrees that at least one condition exists that was not fulfilled — RGI senior management approval. Plaintiff, however, views the writing as setting forth obligations, not as a conditioned promise. See ECF Dkt. # 125 at 22. Plaintiff states that: [T]he terms of the contract were clearly and unambiguously set forth in the September 1, 1998 agreement: • Hardrives would purchase a minimum of 210,000 tons of the following types of aggregate per year at the following prices: Aggregate Grade Price Per Tonnage • 8 $8.50/ton • 57 $8.50/ton • 9 $7.50/ton Sand $7.50/ton • 304 $7.50/ton • RGI would pay Hardrives a $0.50 per ton royalty on all non-Hardrives aggregate sales from the new distribution terminal. • Hardrives would secure land for its asphalt plant and RGI’s adjacent distribution terminal at no cost to RGI. • Hardrives would obtain a five-year-minimum property tax abatement from the City of Youngstown. • Aggregate would be railed in by RGI at less than $4.00/ton and RGI would not be required to contribute to any rail improvements. EOF Dkt. # 125 at 22. The September 1, 1998 writing simply is not as clear as Plaintiff makes it out to be. In contrast to Plaintiffs representation, the handwritten document reads as follows: ECF Dkt. # 122, Ex. 1. Conspicuously absent from Plaintiffs recitation is the language “SUBJECT TO RGI SR. MGT. APPROVAL”. See #125 at 22. This omission alerts the Court to the presence of a condition that has not been satisfied. “A condition is an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due.” Savage, 897 N.E.2d at 200 quoting Restatement of the Law 2d, Contracts (1981)160, Section 224; see also Williston on Contracts § 38:1 (4th ed.) (“If the condition is not fulfilled, the right to enforce the contract does not come into existence.”). “While the failure to perform a promise is a breach of contract, the failure to satisfy a condition is not.” Morrison v. Bare, No. 23667, 2007 WL 4415307 (Ohio App. 9 Dist. Dec. 19, 2007), unreported. The language “SUBJECT TO RGI SR. MGT. APPROVAL” clearly imposes a condition precedent. The adjective ‘subject’ is defined as follows: “contingent on or under the influence of some later action <the plan is subject to diseussion>.” Merriam-Webster’s Online Dictionary (available at http://www.merriam-webster.com/ dictionary/subject (entry for adjective)) (last visited April 1, 2010); see Ross v. Harding, 64 Wash.2d 231, 391 P.2d 526, 531 (1964) (“It would be difficult to choose words to more precisely express an intention to create a condition precedent than those used in the contract here to be construed. ‘It is specifically understood and agreed that this offer is made subject to the written consent * * * ’ ”) (emphasis in original). Therefore, RGI senior management approval was an event not certain to occur because the approval of the document that Mr. Gould executed was contingent on an action by RGI senior management — it was a condition precedent. A condition precedent is generally not a promise. See Comprehensive Care Corp. v. RehabCare Corp., 98 F.3d 1063 (8th Cir.,1996); see also Williston § 38:15; Merritt Hill Vineyards Inc. v. Windy Heights Vineyard, Inc., 61 N.Y.2d 106, 472 N.Y.S.2d 592, 460 N.E.2d 1077, 1081-82 (1984) (“While a contracting party’s failure to fulfill a condition excuses performance by the other party whose performance is so conditioned, it is not, without an independent promise to perform the condition, a breach of contract subjecting the nonfulfilling party to liability for damages.”). “Non-occurrence of a condition is not a breach by a party unless he is under a duty that the condition occur.” Morrison, 2007 WL 4415307 at *5 quoting Restatement of the Law 2d, Contracts (1981)160, Section 225(3). Specifically, no meeting of the minds is considered to have occurred when a writing is conditioned upon management approval. See Hollingsworth, 2009 WL 3601586 at *10. In this situation, however, the “SUBJECT TO RGI SR. MGT. APPROVAL” was wholly within Defendant’s discretion. Therefore, Defendant had an obligation to exercise good faith in fulfilling the condition. See Johnston, 2007 WL 2421821 at *3 quoting Kebe v. Nutro Mach. Corp., 507 N.E.2d at 373 (“When one of the parties to a contract has direct influence over the fulfillment of a condition precedent, that party bears ‘the burden to show that it made good faith efforts to satisfy [the] contractual conditions which allegedly excuse its performance.’ ”). In a situation involving senior management approval, the Court finds that good faith requires at least presenting the writing to senior management for consideration. See Hollingsworth, 2009 WL 3601586 at *1, *10 (affirming summary judgment where “Plaintiffs offered the oil and gas lease to Defendant and Defendant rejected the lease agreement when its senior management did not approve of it, and marked it Void.’ ”). Defendant had a burden to prove its good faith efforts to this Court for the purposes of obtaining summary judgment. See Johnston, 2007 WL 2421821 at *3. Here, Defendant has not directed the Court to any evidence that the September 1, 1998 agreement was ever presented to RGI senior management. Since no evidence of good faith was offered, a genuine issue of material fact exists as to whether the condition was fulfilled. Such a question is directly relevant to the issue of whether a meeting of the minds ever occurred. See Hollingsworth, 2009 WL 3601586 at *10 (“We find, as Defendant argued, that no contract was ever formed in this case since both parties did not show an intent to be bound unless the least offer of Plaintiffs was approved by Defendant’s management.”). And under Ohio law, if Defendant failed to exercise good faith or exercised bad faith with respect to obtaining senior management approval, then the existence of the condition would not prevent the jury from determining that a meeting of the minds had occurred. See Johnston, 2007 WL 2421821 at *3. Of note, Defendant contends that the condition “SUBJECT TO RGI SR. MGT. APPROVAL” had to refer to someone other than Mr. Gould, and the Court agrees because Mr. Gould signed the September 1, 1998 document. ECF Dkt. # 128 at 7. This conclusion forecloses the possibility that Mr. Gould’s own review of the document could satisfy the good faith requirement discussed above. The foregoing conclusions would not prevent Defendant from presenting the issue of management approval to a jury, but of course Plaintiff will have the opportunity to challenge the showing of good faith through cross-examination and its own evidence. Thus, a trial on the merits would be necessary to determine if the failure of the condition prevents the parties from being bound. As an additional matter, Plaintiff contends that a trial is necessary in order for a jury to interpret ambiguities related to the senior management approval language. ECF Dkt. #125 at 24-25. The Court finds that argument to lack merit. The Court has the power to interpret the writing to determine if an ambiguity exists. Parrett, 990 F.2d at 858. Generally, an ambiguity precludes summary judgment. Id. citing Heheman v. E.W. Scripps Co., 661 F.2d 1115, 1128 (6th Cir.1981). Although Plaintiff contends that the writing at issue sets forth clear terms, Plaintiff later takes the position that the writing contains an inconsistency: In his March 11, 1999 letter to Sabatine, and again at his deposition, Gould claimed that the “management approval” language in the middle of the contract meant that the entire agreement was subject to RGI senior management approval. Now, RGI argues that only the final pricing structure was subject to senior management approval. (RGI Motion for Summary Judgment at 19.) Which is it? Notwithstanding this clear discrepancy, it was Sabatine’s understanding that Gould was “senior management” because he was “directing the whole operation” on behalf of RGI. (Sabatine Depo. at 40:8-41:8.) As set forth below, the inconsistency on this issue further demonstrates that Summary Judgment is not warranted. ECF Dkt. # 125 at 24-25; see also ECF Dkt. # 125 at 22 (“the terms of the contract were clearly and unambiguously set forth in the September 1, 1998 agreement”). Plaintiff takes inconsistent positions in arguing that a contract exists because the writing sets forth clear and unambiguous terms, but also arguing that a jury trial is necessary because an ambiguity exists relating to the senior management provision. Regardless of whether the management approval provision modifies the entire agreement or simply the pricing term, it is clear that the provision imposes a condition precedent because the plain language dictates that at least a portion of the agreement was “subject to” an event occurring that was uncertain to occur. Plaintiff takes the position that evidence supports a finding that the condition was satisfied because Mr. Sabatine believed that Mr. Gould was senior management. ECF Dkt. #125 at 24-25. Plaintiffs argument is contrary to law because a party cannot use extrinsic evidence to create an ambiguity in a writing. TriState Group, 782 N.E.2d at 1246; Equitable Life, 197 N.E. at 926. There is no ambiguity because Plaintiff has admitted that Mr. Gould signed the writing (ECF Dkt. # 125 at 9; Sabatine Dep. at p. 32, 1. 7-25, p. 33,1. 1-9) and because the writing clearly indicates that it is subject to RGI senior management approval. ECF Dkt. # 122, Ex. 1. Clearly, RGI senior managers beside Mr. Gould had to approve the agreement because there is no other reasonable explanation for Mr. Gould to execute a document that explicitly states “SUBJECT TO RGI SR. MGT. APPROVAL”. Mr. Sabatine’s deposition testimony cannot create an ambiguity that does not exist on the face of the instrument. Thus, the Court clarifies that it is not denying Defendant’s motion on the basis that the phrase “SUBJECT TO RGI SR. MGT. APPROVAL” created an ambiguity. iv. Whether ambiguous provisions are conditions or promises The Court now turns to the other provisions of the September 1,1998 writing that could impose conditions: “@ 4.00 or less total rai [sic] include’s [sic] cars,” “Free land,” “5 yr min tax abate,” and “No improve to rail included.” See ECF Dkt. # 122, Ex. 1. These provisions do not contain the same clear language as the “SUBJECT TO RGI SR. MGT. APPROVAL” provision does. As the Supreme Court of Washington noted in Ross: “Any words which express, when properly interpreted, the idea that the performance of a promise is dependent on some other event will create a condition. Phrases and words such as ‘on condition,’ ‘provided that,’ ‘so that,’ ‘when,’ ‘while,’ ‘after,’ or ‘as soon as’ are often used.” Ross, 391 P.2d at 531. The provisions in question here arguably contain no prefacing language at all. The Court notes that it could be inferred that all of these terms are conditions from the manner in which “subject to” is offset, which is roughly reproduced below: SUBJECT TO RGI SR. MGT. APPROVAL .50$ Royalty on all non-Hardrive sales Free land 5 yr min tax abate, no improve to rail included ECF Dkt. # 122, Ex. 1. It is not clear from the writing that the phrase “subject to” modifies “.50$ Royalty on all non-Hardrive sales,” “Free land,” “5 yr min tax abate,” and “no improve to rail included.” Notably, there is no colon following “subject to,” the elements are not numbered or bulleted, the elements are not separated by commas or semicolons, and there is no conjunction connecting the elements. Therefore, a reasonable jury could conclude that “SUBJECT TO” modifies only “RGI SR. MGT. APPROVAL” or that it modifies all four provisions. The mere fact that it is questionable whether “subject to” modifies these provisions establishes an ambiguity as to whether they are conditions or promises. For example, taken alone the phrase “Free land” can be considered either as a promise for Hardrives to provide free land to RGI or as a condition precedent underlying RGI’s pricing schedule; the prices would only be valid if RGI could obtain free land. Defendant’s opening brief presumes that these written provisions are conditions. ECF Dkt. # 122 at 6. Although, Defendant later directs the Court to deposition testimony where Mr. Sabatine acknowledged that the writing was contingent on free land, a 5 year tax abatement, and RGI not having to make any rail improvements. ECF Dkt. # 122 at 19 citing Sabatine Dep. at p. 39, 1. 20-p. 40,1. 3. Plaintiff contends that these provisions are promises. ECF Dkt. # 125 at 22. Neither party acknowledges that this writing is ambiguous with respect to whether “@ 4.00 or less total rai [sic] include’s [sic] cars,” “.50c Royalty on all non-Hardrive sales,” “Free land,” “5 yr min tax abate,” and “No improve to rail included” are promises or conditions. Consequently, the briefs cite no precedent from Ohio that controls when a provision is subject to reasonable interpretation as a promise and reasonable interpretation as a condition. The Court is not aware of any controlling precedent for this particular legal situation. However, the Court notes that other jurisdictions have held that “[w]here it is doubtful whether words create a ‘promise’ or an ‘express condition,’ they are interpreted as creating a ‘promise.’ ” Ross, 391 P.2d at 531 citing Restatement, Contracts § 261, p. 375; 5 Williston, Contracts (3d ed.) § 665, p. 133; Sternberg v. Secretary, Dept. of Health And Human Services, 299 F.3d 1201, n. 5 (10th Cir. 2002). While the Court acknowledges that these cases are not binding, the Court is unaware of an precedent compelling a finding that the terms in the September 1, 1998 writing are conditions. Even if the rule of law in Ohio would not mandate a finding that the ambiguous terms are promises, the ambiguity must be submitted to the jury for a determination of the parties’ intent. See Inland Refuse, 474 N.E.2d at 272-73. Given that the foregoing provisions are subject to more than one reasonable interpretation and that it is unclear whether Ohio law requires the ambiguous provisions to be interpreted as promises or submitted to a jury for determination of the parties’ intent, the Court turns to the extrinsic evidence that has been presented to see if triable issues of fact exist. Plaintiff contends that both parties had “the same understanding with respect to the terms of the September 1, 1998 contract.” ECF Dkt. # 125 at 10. Plaintiff then cites Mr. Sabatine’s deposition at pages 34-40. The Court notes that on pages 39 and 40, Mr. Sabatine specifically acknowledged that the provisions noted above were contingencies: Q. Okay. So would it be fair to say then, these last three things that we’ve talked about, that Rogers Group’s performance under this document was contingent on them getting free land, a five-year minimum tax abatement, and not having to install any rail improvements? A. This is the way this agreement was negotiated at that time. Q. Well, that, what I’m asking you — I understand that — but I’m asking you, isn’t it true that their performance under the terms here were contingent on free land, a five-year minimum tax abatement, and them not having to make any rail improvements? A. That’s what we discussed and that’s what we put in writing. Q. Okay. A. That’s what we initialed. Sabatine Dep. at p. 39, 1. 12-p. 40 1. 3. Although Mr. Sabatine’s testimony touches on legal opinion, it provides direct evidence of his state of mind and intent to contract. Based on Mr. Sabatine’s testimony, he believed that there were contingencies. Thus, it is undisputed that no binding agreement existed until the contingencies or conditions were fulfilled. The question becomes twofold: (1) whether there are any ambiguities related to what the conditions required; and (2) whether there are any disputes of material fact as to whether the conditions were satisfied. These questions are intertwined to some extent because if an ambiguity exists in the condition, it could be unclear as a factual matter whether the condition has been satisfied. As a preliminary matter, the Court notes that Defendant contends that there was no “certainty of terms” in the September 1, 1998 writing. ECF Dkt. # 122 at 18-20. Most of the arguments that Defendant advances pertaining to uncertain terms are more appropriately characterized as challenging the writing for failing to satisfy conditions precedent. It appears that Defendant’s argument pertaining to uncertainty of terms does not challenge the writing for failing to state terms. Thus, it does not deal with uncertainty pertaining to whether the writing contains the material terms of the purported agreement. See Eastbanc, Inc. v. Georgetown Park Associates II, L.P., 940 A.2d 996, 1002 (D.C., 2008) (discussing certainty). Rather, Defendant’s arguments pertain to the factual uncertainty as to whether certain conditions would be fulfilled in the future. See ECF Dkt. # 122 at 18 (“Many important uncertainties existed here, one of which was rail access. Acquiring a site that had favorable rail access at no cost to RGI was an important uncertainty that had to be resolved before RGI would agree to supply aggregate stone at the prices discussed at the September 1 meeting.”). Therefore, Defendant’s arguments are properly characterized as arguments pertaining to conditions precedent, not pertaining to uncertainty of terms. The Court will proceed to consider if the provisions of the September 1, 1998 writing set forth conditions precedent and if there is a genuine issue of material fact as to whether those conditions were fulfilled. (a) “.50$ Royalty on all nonHardrive sales” Although a structural ambiguity exists as to whether “subject to” modifies “.50$ Royalty on all non-Hardrive sales,” the Court finds that the provision can only reasonably be construed as a promise. It simply does not make sense to consider the provision “.50$ Royalty on all nonHardrive sales” as a condition precedent because it is not an event uncertain to occur. See Savage, 897 N.E.2d at 200. It is clearly bargained-for consideration. Accordingly, the Court finds no genuine issue of material fact pertaining to this term, (b) “5 yr min. tax abate.” The five year tax abatement must be construed as a condition precedent because it had to be obtained from a third party, not Hardrives or RGI. Contrary to Plaintiffs representation, the writing does not unambiguously state that “Hardrives would obtain a five-year-minimum property tax abatement from the City of Youngstown.” The writing said “5 yr min. tax abate.” There are no words of obligation present in this provision — it is not clearly a promise. The only reasonable interpretation is that the agreement was conditioned upon the local tax authority providing the tax abatement. This was an event, not certain to occur, which must occur, before performance under a contract became due. See Savage, 897 N.E.2d at 200. And, as noted above, Mr. Sabatine specifically admitted that the purported agreement was contingent on a 5 year minimum tax abatement. Sabatine Dep. at p. 39, 1. 12-p. 40 1. 3. Accordingly, the 5 year tax abatement was a condition precedent, and no contractual obligations arose until it was fulfilled. The next question is whether the term “5 yr. min. tax abate.” is ambiguous because the phrase does not specify what type of tax abatement was required. The Court finds it unnecessary to address this issue. Defendant mentioned the tax abatement condition in its opening brief in support of its motion for summary judgment, but Defendant never contended or demonstrated that the condition was unfulfilled. ECF Dkt. #122 at 6, 19. Although Defendant contends in its reply brief that Plaintiff has failed to establish by way of Mr. Sabatine’s testimony that the tax abatement had been secured, Plaintiff had no reciprocal burden to meet. Therefore, the Court declines to consider Defendant’s argument pertaining to the tax abatement condition, which was articulated for the first time in its reply brief. See, e.g., Hunt v. Big Lots Stores, Inc., 244 F.R.D. 394, 397 (N.D.Ohio, 2007). Accordingly, the tax abatement condition does not provide a basis for granting summary judgment. (c) “Free land” Defendant does not challenge that the “Free land” condition was satisfied. See ECF Dkt. #122 at 14-20; ECF Dkt. # 128 5-7. Plaintiff stated that it entered a license agreement with the City of Youngstown to use the Center Street property for $1.00 per year. ECF Dkt. # 125 at 12. Plaintiff contends that it agreed to cover the nominal cost so that RGI would have access to “free land” in accordance with the September 1, 1998 writing. Id. While Defendant does not explicitly contend that the “free land” condition went unsatisfied, Defendant contends that the September 1, 1998 pricing was contingent on the availability of a particular parcel of land: RGI premised its September 1 pricing on availability of the Ohio Works site because it had rail access already available at no improvement to rail would have been necessary. The Center Street site, on the other hand, had no available rail siting and would have require considerable funding to make rail access available. Once the Ohio Works site was no longer available, the pricing contingent upon that site was also no longer available. ECF Dkt. # 122 at 18 (internal citations omitted). In its reply brief, Defendant contends that the “preliminary pricing structure” was based on the Ohio Works site and the site was never obtained. ECF Dkt. # 128 at 6. As Defendant’s own brief states, “secret hopes and wishes count for nothing.” ECF Dkt. # 122 at 17 quoting Sky com, 813 F.2d at 814-15. The September 1, 1998 writing says nothing about the Ohio Works site. If Defendant specifically required the Ohio Works site, then it should have insisted that term be included in the writing that Mr. Gould signed. Based on the September 1, 1998 writing, the only condition was “Free land.” Therefore, once “Free land” was obtained and if the other conditions satisfied, a binding contract would be in place. Admittedly, the “Free land” condition is ambiguous because not any land would satisfy the condition. However, the ambiguity establishes a questions of fact for a jury. What land would satisfy the written condition — where must it be located, what features must it have? How would the condition be satisfied — by a purchase agreement or by physical occupation of the land? The writing does not answer these questions, and the parties clearly disagree as to whether the September 1, 1998 writing contemplated any suitable land or specifically the Ohio Works site. Apparently, the parties visited the Ohio Works site prior to signing the September 1, 1998 writing. ECF Dkt. # 122 at 5; # 125 at 8. Testimony regarding visits to the Ohio Works site and the Center Street site may simply be evidence as to the definition of “land.” See Smith v. Findlay College, No. 5-83-35, 1984 WL 8095 at *2 (Ohio App.3d Dist. Oct. 22, 1984), unreported (“Thus, the term[, ‘academic year,’] is not defined as a matter of law and since the written contract is silent respecting same, both by specific definition or by interpretation of its other terms, the term remains ambiguous and extrinsic evidence must be resorted to and would be admissible in the trial of the action to define such term.”). Defendant has not directed the Court to extrinsic evidence showing that the parties could have only reasonably meant “Free land” to mean the Ohio Works site. It is important to note, however, that the September 1, 1998 writing states “no improve to rail included.” ECF Dkt. # 122, Ex. 1. Defendant contends that the Ohio Works site “had rail access in place and needed no capital improvement.” ECF Dkt. # 122 at 5. Thus, the writing itself appears to contemplate that a site, other than the Ohio Works site, could have satisfied the “Free land” provision. For the foregoing reasons, the Court finds that the “Free land” provision does not justify summary judgment. (d) “no improve to rail included” Defendant contends in its reply brief that “because it is beyond dispute that rail access was never obtained, the cost of ‘improving’ rail is not reflected in the pricing structure in the September 1 writing ...” ECF Dkt. # 128 at 6 (internal citation omitted). The foregoing quote could be construed as a concession that Defendant would pay for improving rails and adjust its pricing accordingly. Under this construction, the provision is simply a notice that the prices were subject to change. Plaintiff interprets the phrase “no improve to rail included” to mean that RGI would not be required to contribute to any rail improvements. ECF Dkt. # 125 at 22. Mr. Sabatine interpreted this provision as a condition — any agreement was contingent on RGI not having to pay for any rail improvements. Sabatine Dep. at p. 39, 1. 5-p. 40,1. 3. Either interpretation is reasonable. It is reasonable to interpret the provision as a notice that the prices were subject to change because “included” could mean that the cost of rail improvements had not been accounted for in the price schedule. This notice regarding the potential change in prices would not necessarily affect whether a meeting of the minds occurred. It is also reasonable to interpret the provision as a condition because it is possible that the entire deal was contingent on events uncertain to occur — either the parties securing land that had suitable rail access in place that would not require improvements, or the parties negotiating an agreement with a railroad company that did not require RGI to pay for rail improvements. Given that at least two reasonable interpretations exists, the provision is ambiguous. It is unclear whether it is a notice or a condition. If the provision was a condition, then a question exists as to whether it was satisfied. Ultimately, a jury would have to resolve questions as to whether this provision is a notice or a condition and whether