Ragen v. Hancor, Inc. (920 F. Supp. 2d 810, 2013)

MEMORANDUM OPINION

KATZ, District Judge.

Plaintiff William Ragen (who does business as Ragen Associates) spent twenty years as a manufacturer’s representative, selling pipe and related drainage products made by defendant Hancor, Inc. During those years, the relationship evolved and changed in several ways. The parties started with a written contract in 1988 and updated it in writing in 1992, 1993, 1994, 1995, 1996, and 2001. The parties also frequently modified the terms of the sales relationship, usually by Hancor telling Mr. Ragen that it was adding or removing territory, customers, and access to product lines. In 2005, defendant Advanced Drainage Systems Inc., which was a long time competitor of Hancor, acquired Hancor. Over time, ADS took over some Hancor operations, yet also strived to maintain some legacy Hancor operations in place and, at least to an extent, operate independently. In 2007, the combined corporate management opted to end Hancor’s and ADS’ sales relationship with Mr. Ragen.

Mr. Ragen filed an amended complaint with this Court containing nineteen claims for relief. (Doc. 52.) Claims 3, 5, 8, 9, 11, 12,13,14,16 and 17 were dismissed, either by the Court in response to a motion to dismiss or voluntarily. (Docs. 68 & 96.) Three summary judgment motions are now before the Court. Mr. Ragen has filed a partial summary judgment motion asking for judgment in his favor on Claims 1 and 2 against only defendant Hancor, which Hancor opposes. Hancor has filed a partial summary judgment motion asking for judgment in its favor on just certain theories contained within claims 1 and 2 and for judgment in its favor on claims 4, 7, 10, 18, and 19. Hancor has acknowledged that some theories contained in Claims 1 and 2 must go to trial. ADS has filed a summary judgment motion asking for judgment in its favor on all claims that remain against it (1, 2, 4, 7, 10, 15, 18, and 19). Mr. Ragen opposes both defendants’ motions.

I. Jurisdiction

The amended complaint reflects that Mr. Ragen is a citizen of New Jersey. (Doc. 52 at ¶ 2.) Defendant Hancor Inc. is incorporated in Ohio with its principal place of business in Ohio. (Id. at ¶ 3.) Defendant Advanced Drainage Systems, Inc. is incorporated in Delaware and its principal place of business is in Ohio. (Id. at ¶ 5.); see 28 U.S.C. § 1332(c). The complaint alleges damages in excess of $75,000. (Id. at ¶ 1.) The defendants admit to the citizenship of each corporation as alleged in the complaint. (Answer, Doc. 58.) The Court has diversity jurisdiction since, at the time of the filing of the complaint, complete diversity existed between the plaintiff and defendants and the amount in controversy exceeds the threshold. 28 U.S.C. § 1332.

II. Standard

Summary judgment is appropriate where, “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of, “informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quotations omitted). The movant may meet this burden by demonstrating the absence of evidence supporting one or more essential elements of the non-movant’s claim. Id. at 323-25, 106 S.Ct. 2548. Once the movant meets this burden, the opposing party can avoid judgment only by setting forth facts that show that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient “simply [to] show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, Rule 56(a) “requires the nonmoving party to go beyond the pleadings” and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; see also Harris v. General Motors Corp., 201 F.3d 800, 802 (6th Cir.2000). Summary judgment must be entered, “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

“In considering a motion for summary judgment, the Court must view the facts and draw all reasonable inferences therefrom in a light most favorable to the non-moving party.” Williams v. Belknap, 154 F.Supp.2d 1069, 1071 (E.D.Mich.2001) (citing 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987)). However, “at the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter,” Wiley v. United States, 20 F.3d 222, 227 (6th Cir.1994) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505); therefore, “[t]he Court is not required or permitted ... to judge the evidence or make findings of fact.” Williams, 154 F.Supp.2d at 1071. The purpose of summary judgment “is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried.” Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 130 F.Supp.2d 928, 930 (S.D.Ohio 1999). Ultimately, this Court must determine, “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505; see also Atchley v. RK Co., 224 F.3d 537, 539 (6th Cir.2000).

III. Choice of Law

Each written contract submitted into evidence contains a provision specifying that Ohio law shall be used to construe the terms of it. (Doc. 52-1 at ¶ 12; Doc. 52-2 at ¶ 13(e); Doc. 52-3 at ¶ 12(e); Doc. 52-4 at ¶ 12(e); Doc. 52-6 at ¶ 12(e); Doc. 52-7 at ¶ 12(e); Doc. 52-10 at ¶ 12(e).) Even though Mr. Ragen worked in several eastern states, Ohio has adopted the Restatement (Second) of Conflict of Laws Section 187, which prioritizes the parties’ choice within a contract over other states unless the chosen state, “has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice,” or application of the chosen state’s law conflicts with the fundamental policy of the state that would otherwise be chosen. Schulke Radio Prods., Ltd. v. Midwestern Broad. Co. 6 Ohio St.3d 436, 453 N.E.2d 683, 686 (1983). Neither party has argued for any other choice of law and neither exception to the Restatement principal is apparent in this case. The Court will use Ohio law.

IV. Mr. Ragen’s Partial Summary Judgment Motion

Mr. Ragen’s summary judgment motion asks the Court to find that Hancor breached the written agreement between Mr. Ragen and Hancor by, on a few occasions, unilaterally reducing his territory without committing those changes to writing as was required in each written agreement. Mr. Ragen can show that a series of written agreements with Hancor outlined and governed their sales relationship over the course of a number of years. (Doc. 52-1 (1988 agreement); Doc. 52-2 (1992 agreement); Doc. 52-3 (1993 agreement); Doc. 52-4 (1994 agreement); Doc. 52-6 (1995 agreement); Doc. 52-7 (1996 agreement); Doc. 52-10 (2001 agreement)). These agreements define Mr. Ragen’s sales territory according to geography, product line, and type of account. They also contain clauses requiring all changes to each agreement to be in writing and accepted by both parties. (E.g., doc. 52-10 at ¶ 12(a) (“Amendment of Agreement. Neither this Agreement nor any term hereof may be amended, changed, or modified in any manner except by an instrument in writing which refers to this Agreement and is executed by each of the parties hereto.”).) Mr. Ragen can show that, through the many years of their relationship, Hancor repeatedly modified his sales territory and removed customers without properly modifying the agreements in writing. Hancor does not dispute that it modified the sales territory without a written amendment to the contract, but contends the original contract may not have required territory modifications to be in writing, that the modifications may have been an oral agreement to both modify the territory and to modify the no-oral clause, and Mr. Ragen has waived his right to bring a cause of action for breach because, in continuing the sales relationship for many years, he induced Hancor to believe he waived his right to complain of their breach. Because evidence of any one of these arguments would defeat Mr. Ragen’s partial summary judgment motion, the Court need not explore each and instead focuses just on waiver by estoppel.

A breach of a contract is any failure to perform as the contract specifies when the duty to perform exists. Radio Parts Co. v. Invacare Corp., 178 Ohio App.3d 198, 897 N.E.2d 228, 235 (2008); see also Restatement (Second) of Contracts § 235(2) (“When performance of a duty under a contract is due any nonperformance is a breach.”); accord Aluminum Line Products Co. v. Brad Smith Roofing Co., Inc., 109 Ohio App.3d 246, 671 N.E.2d 1343, 1351 (1996). Mr. Ragen contends that the evidence of Hancor’s and ADS’ breach is so uncontroverted that, not only can he defeat the defendants’ summary judgment motions, but he is entitled to summary judgment himself on these points. He says he can show the court that the contracts included a specification of his territory and a no-oral modification clause. He also claims he can demonstrate that Hancor modified his territory, so, he says, the breach is evident.

Even if Mr. Ragen can demonstrate breach of the no-oral modification clause, Hancor may be relieved of liability if it can demonstrate waiver. Normally, one party’s breach may excuse the other party’s obligation to perform under a contract, but where the non-breaching party performs in spite of the other’s breach and continues to receive the benefits of the contract, in certain cases he may have waived his right to demand the performance or receive damages stemming from the breach. “There are few principles of contract law better established, or more uniformly acknowledged, than the rule that when a contract not fully performed on either side is continued in spite of a known excuse, the right to rely upon the known excuse is waived.” 13 Williston on Contracts § 39:31 (4th ed.). Broadly, the term waiver describes a party’s voluntary relinquishment of a right. This type of waiver generally requires consideration to be binding on the one who relinquished the right. Marfield v. Cincinnati, D. & T. Traction Co., 111 Ohio St. 139, 144 N.E. 689, 691 (1924) (noting that when waiver is defined as a voluntary relinquishment of a known legal right, it, “must be supported by a consideration which may be either a benefit to the promisor or a disadvantage to the promisee.”). Hancor claims that Mr. Ragen both explicitly and implicitly (and often grudgingly) accepted oral modifications to the contract (including oral modifications to the no-oral modification clause) and that the consideration for Mr. Ragen’s waiver of his contractual right to written modifications is Hancor’s forbearance of its right to terminate the contract any time.

The Court need not explore the intricacies of waiver of rights in this light because another, more specific, version of waiver applies. Where waiver generally is voluntarily giving up a contract-based right, a specific subset of waiver has its roots in estoppel. Mark-It Place Foods, Inc. v. New Plan Excel Realty Trust, 156 Ohio App.3d 65, 804 N.E.2d 979, 1000 (2004). It involves relinquishing a right, but the lynchpin of this subset of waiver is not when one party forgoes something to which he might be entitled in exchange for consideration, but when he induces the other party to rely on his waiver and continued performance under the contract. Motz v. Root, 53 Ohio App. 375, 4 N.E.2d 990, 991 (1934) (“There are also circumstances which justify what may be designated as a waiver by estoppel, such as where the acts and conduct of a party inconsistent with an intention to claim the right have been such as to mislead the other party to his prejudice, and thereby estop the party having the right from insisting upon it.”); accord Mark-It Place Foods, 804 N.E.2d at 1000. “A waiver is a voluntary relinquishment of a known right,” and signals to the other party a willingness, “to dispense with complete performance at a time when the obligor might fully perform.” List & Son Co. v. Chase, 80 Ohio St. 42, 88 N.E. 120, 122 (1909). The waiver by estoppel doctrine prevents the would-be wronged party from first acting as if he accepts the flawed performance long enough for the other party to rely on that and continue delivering under the contract and then later claiming the contract was breached and damages are owed. Such waiver, “may be accomplished by acts or conduct and there may be an estoppel from insisting upon the right claimed to have been relinquished, in which event no consideration is necessary.” Marfield v. Cincinnati, D. & T. Traction Co., 111 Ohio St. 139, 144 N.E. 689, 691 (1924).

The record shows that Mr. Ragen has evidence sufficient to establish Han-cor’s breach by showing that the written agreements created the sales territory and required modifications to be in writing and then by showing that Hancor both added and removed territory and customers without Mr. Ragen’s explicit or written consent. Notwithstanding that, Hancor has pointed to significant evidence in the record from which a fact finder may find that Mr. Ragen may be estopped from bringing these claims because he waived his right to raise these breaches in an action. For example, Mr. Ragen testified in his deposition:

Q. The Paragraph 184(B) indicates that Hancor unilaterally removed the Bronx, Kings, Nassau, New York, Queens, Richmond and Suffolk Counties effective August 1st, 1995, and your position in this lawsuit is that was a breach of contract because it was not signed— there was no signed and written amendment to evidence that it was agreed to, fair?

A. My contention is that they removed it without my approval and agreement.

Q. And what did you do to evidence that you did not agree with the removal of those counties?

A. Well, I don’t know what’s in the documentation. I do know, as evidenced by the letter that we produced when I got it back, that I obviously got Bob Wicks to make a promise that he would give it back if they proved me wrong.

Q. And I guess my question is a little different, and that is, what did you do to communicate to Hancor that you did not agree with the decision to remove those counties?

A. I know there is some production that we have done which shows some correspondence from around this time, August 1st, 1995, where they were requesting that I, I believe, hire somebody exclusively in the territory or whatever, and I was arguing that that was not a practical thing to do and I wouldn’t do it, and I didn’t do it.

Q. Did you refuse to continue serving as a direct sales representative for Han-cor?

A. As I said before, somebody cuts off a foot, I’m not going to proceed then to slit my own throat, which would have been the effective result of terminating the contract.

Q. So you continued then to serve as a manufacturer’s representative of Han-cor, following the decision to modify the territory as set is forth in 184(B)?

A. Under protest, yes, and it’s not— doing that is not the same as agreeing to that modification. It wasn’t in my power to reverse that decision.

Q. It was in your power though to indicate that you wouldn’t go forward with it, correct?

A. And it was in my power to go forward under protest. I was not agreed— it was very clear that I didn’t agree to it to everybody concerned.

Q. You continued to operate as a manufacturer’s representative for Hancor following the modification of the territory, correct?

A. Yes, I did.

Q. And you continued to promote products in your existing territory, right?

A. Yes, I did.

Q. And you continued to be compensated for the sale of those products?

A. Yes, I did.

Q. And you don’t—

A. And as soon as that territory became open again, I reminded Bob Wicks of his promise, that if I proved to be right and he proved to be wrong, he would put those counties back in my territory. That was the next contract.

(Ragen Dep. Sept. 14, 2011, Doc. 108 at 161-163.) Mr. Ragen’s testimony about the other modifications also reflects this same reality: he was not happy with having territory taken away, but he kept working for Hancor and never exercised his right to terminate the contract.

Nowhere does Hancor have a greater potential to demonstrate Mr. Ragen’s waiver than through his decision to accept the territorial modifications grudgingly, but commit to changing the minds at Han-cor either through stellar performance on his part or by pointing out lackluster performance on his replacement’s part. This is evidence that Mr. Ragen decided to work from within the system to change it to his liking rather than rejecting the modification. As such, this is evidence of waiver by estoppel, and, if believed, could show that Mr. Ragen accepted the territorial modifications and waived his right to raise them later as breaches of contract. See Nat’l City Bank v. Rini, 162 Ohio App.3d 662, 834 N.E.2d 836, 840 (2005) (“In particular, ‘waiver by estoppel’ exists when the acts and conduct of a party are inconsistent with an intent to claim a right, and have been such as to mislead the other party to his prejudice and thereby estop the party having the right from insisting upon it.” (quotations omitted) (emphasis in original)).

The Court need not go further in analyzing Hancor’s other theories because it has pointed to enough evidence in the record to demonstrate a question of fact as to whether Mr. Ragen waived any potential breaches and is estopped from claiming them now. The Court must deny Mr. Ragen’s partial summary judgment motion in its entirety.

V. ADS’ and Hancor’s Summary Judgment Motions

Both ADS and Hancor have moved for summary judgment with ADS asking the Court for complete summary judgment and Hancor asking for partial judgment and acknowledging that certain questions will require a trial to resolve. Claims 1, 2, 6, and 7 assert breaches of contract, but before the Court can decide those summary judgment questions, the Court must determine whether ADS is liable for potential contract breaches. Mr. Ragen also raises a claim sounding in estoppel and several non-contract claims which follow the analysis of the contract-based claims.

A. ADS’ Liability

In 2005, ADS acquired its competitor Hancor in a stock purchase and owned it for the duration of the time in question. Immediately after the acquisition, Mr. Ra-gen continued to work for Hancor, then a wholly owned subsidiary of ADS, and ADS management controlled the operations of Hancor. Over time, the two companies integrated operations considerably. Mr. Ragen included ADS as a defendant and four of Mr. Ragen’s claims against ADS are accusations of a breach of contract: Claims 1, 2, 6, and 7. Because the contract is written between Hancor and Mr. Ragen, and because it is not expressly modified in writing to include ADS as a party, before the Court can address whether the agreement was breached, it must address whether ADS can be held liable for any breach or whether that question is solely between Mr. Ragen and Hancor. Mr. Ra-gen proposes four theories under which ADS could be liable for breaches before and after the acquisition.

1. Whether ADS Joined the Contract Prospectively

ADS moves the Court to find as a matter of law that it was not a party to the 2001 Agreement with Mr. Ragen so it cannot be liable for breaches of that agreement. Mr. Ragen argues that either ADS placed itself into the agreement as an additional “Manufacturer” or ADS replaced Hancor in the contract’s “Manufacturer” role. His theory for holding ADS liable for breaches after the acquisition rests on him proving either: (1) he entered into a new, oral agreement with ADS that augmented or supplanted the Hancor contract, (analyzed in Section 2, infra), or (2) ADS joined the 2001 written agreement by oral modification, replacing or supplanting Hancor..

Mr. Ragen cites MBIS, Inc. v. Carter, McCormic & Peirce, Inc., to support his theory that a court can look at an oral agreement to “continue to sell” to determine if one party replaced another in a manufacturer’s representative’s contract and created a liability for commissions. No. 41145, 1980 WL 854881 (Ohio Ct.App. Aug. 21, 1980). In that case, the original manufacturer, Gilmore, filed bankruptcy and the manufacturer’s representative firm produced evidence showing that the manufacturer asked the representative to continue to sell for the new entity and promised commissions. “There was competent, credible evidence going to all the essential elements of that portion of appellee’s counterclaim alleging commissions due from appellant after the bankruptcy proceedings of Gilmore Industries. Therefore, we are unable to say the judgment was against the weight of the evidence.” Id. The facts in MBIS do not perfectly align with those in this case. Gilmore Industries was no longer an ongoing entity and Mbis, Inc. was doing business in its stead, performing on and, to some extent, paying on its preexisting contracts. In this case, ADS contends that Hancor remains a viable company, only purchased by ADS and Mr. Ragen’s long and compensated sales relationship did not switch from Hancor to ADS in the same way that the sales representative’s relationship shifted from Gillmore, Inc. to Mbis, Inc.

Nevertheless, Mr. Ragen points to evidence tending to show ADS and Mr. Ra-gen were in contract (either by ADS supplanting Hancor’s contractual role or by ADS striking a unique oral agreement with Mr. Ragen). Mr. Ragen can show that ADS’ message about whether Hancor was to remain a separate company with common ownership or whether ADS and Hancor were to become one company was confusing. (See, e.g., Doc. 131-6 (Acquisition press release, which includes a quote from ADS’ president, Joe Chlapaty, stating: “Today’s announcement is about the confluence of two strong companies that will now become one great company.”); see also Doc. 102-1 (email from Chlapaty to Mr. Ragen, announcing the acquisition and claiming, “Although we will maintain the Hancor product line and name, we will operate as one company with one culture.”). (But see Klein Aff., Doc. 118-2 (claiming that, after the acquisition, Han-cor was a wholly owned subsidiary of ADS).) Mr. Ragen can also show that Hancor’s management team members were either ADS employees themselves or were directly reporting to ADS management. (Fussner Dep., Doc. 102 at 20 (“Q. Does the fact that Hancor officers had to report to ADS officers indicate to you that the ADS officers were the superiors of the Hancor officers? A. Superior in an organizational structure, yes. Q. And as the superiors in an organizational structure, they could — they had the ultimate decision-making authority over matters affecting Hancor, correct? A. Yes.”).) Additionally, management talked in terms of Mr. Ragen’s contribution to ADS. (Doc. 131-1, at 185 (email reprimanding Mr. Ra-gen for his obsession with the fairness of pricing after the acquisition and admonishing him, “I would propose your time would better serve the ADS organization if you were to spend three days a week in the Lower Hudson Valley calling on contractors and engineers with your distributors.”); see also Doc. 131-3 at 160 (letter on joint Hancor/ADS letterhead terminating Mr. Ragen: “Pursuant to our contract with Ragen Associates ... this will serve as our 30-day notice of termination of your services for Advanced Drainage Systems, Inc.”); Doc. 114-2 at 158 (letter on joint ADS/Hancor letterhead with tag line, “One Company, One Culture.”).) Furthermore, ADS paid employees and subcontractors (including Mr. Ragen) directly on its checks rather than through Hancor accounts. (Fussner Dep., Doc. 102 at 30-31; Ragen Deck, Doc. 131-3 at 27; Doc. 131-3 at 138-149 (mix of Hancor and ADS checks); id. at 151 (2007 Form 1099 issued by ADS to Mr. Ragen).)

This evidence — particularly the evidence that, after the acquisition, ADS managed Mr. Ragen and paid him directly — creates a question of fact as to whether ADS became a party to the contract. This analysis is completely separate from holding ADS accountable for Hancor’s conduct as a party to the contract, such as by piercing the corporate veil or determining the companies merged, discussed in Sections 3 and 4, infra. However, because Mr. Ragen can show he had an ongoing business relationship with ADS (ADS’ management of him and the considerable sums ADS paid him), he has shown enough evidence that he had some contractual arrangement with ADS. Furthermore, he has pointed to considerable evidence that his business relationship with ADS was, with some modifications, a continuation of the long-standing relationship with Hancor. While ADS and Hancor point to considerable evidence in the record showing that they strived to maintain two separate companies and kept Mr. Ragen working for just Hancor, in the context of summary judgment, this evidence’s role is limited.

Once Mr. Ragen can show privity of contract with ADS, he must show breach to survive summary judgment (discussed in Section B, infra). In its summary judgment motion, Hancor concedes that the question of whether it breached the contract in certain ways is not appropriate for summary judgment and must go to trial. (Doc. 119 at 13 (“Plaintiffs breach of contract claims at counts one and two against Hancor raise a variety of issues, some of which will ultimately have to be tried to the Court.”).) The Court must deny ADS’ request for summary judgment on the breach of contract claims after the acquisition. To the extent those claims stand against Hancor, they may stand against ADS if Mr. Ragen proves at trial that ADS supplanted Hancor as the manufacturer in the agreement or added itself as an additional manufacturer.

2. Creation of a New, Oral Contract Between Mr. Ragen and ADS

In Section 1, supra, the Court allowed the possibility that Mr. Ragen could show that he was in contract with ADS (primarily based on evidence that ADS managed him and paid him after the acquisition). In addition to arguing that ADS became a party to the contract created between Mr. Ragen and Hancor (discussed in Section 1), Mr. Ragen also contends he and ADS struck a new and separate unwritten agreement that governed their relationship (expressed in Claim 6). Mr. Ragen’s evidence of this alternate theory is the same; he can demonstrate that ADS managed and paid him in an ongoing, long-term sales arrangement. ADS, of course, denies that it became a party to the contract between Hancor and Mr. Ragen, but considering the totality of the circumstances, if ADS did not join the written agreement, then Mr. Ragen has some evidence to support the theory that Mr. Ra-gen and ADS were in a separate oral agreement.

Even though he may be able to demonstrate the presence of some agreement, Mr. Ragen has not presented evidence demonstrating the terms of that oral agreement coupled with instances where ADS breached those terms. Mr. Ragen says that the terms of this oral agreement must be “hauntingly reminiscent of those found in the 2001 Contract,” since business continued after the acquisition much as it had before. (Doc. 131 at 53.) This theory rests on showing that the terms of the post-acquisition agreement are demonstrated by the course of performance between ADS and him (for instance by showing that he was paid by ADS, ADS executives made company decisions, and he was permitted to sell ADS products). See Restatement (Second) of Contracts § 202. (“Rules in Aid of Interpretation ... (4) Where an agreement involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement.”). Yet, this theory presents a conflict: if the Court followed this logic and found that Mr. Ragen could establish the terms of the oral agreement by showing the course of conduct, then Mr. Ragen would next need to show the breach of those terms. He has not pointed to evidence showing that, after ADS’ acquisition, he and ADS established a term by a consistent course of performance and then ADS breached that term. The core reason for this is that the conduct that Mr. Ragen points to as breaches of the written agreement with Hancor may become the course of performance with the alleged oral contract with ADS. Supporting this theory would be very difficult; Mr. Ragen would need to show that ADS consistently established terms of the new oral agreement (by course of performance) then made a sharp left turn and breached those very terms. The record and Mr. Ragen’s arguments reflect the opposite: ADS’ (and Hancor’s) behavior was more consistent, either in breach of the written agreement or not, but not establishing a new, oral agreement with ADS, then making a sharp turn and breaching it.

Thus, while Mr. Ragen has pointed to evidence in the record that could support a finding that he and ADS were in a separate, oral contract, he has not pointed to evidence that both establishes the terms of those from a course of performance and then shows a breach. ADS is entitled to summary judgment on the theory that its relationship with Mr. Ragen was ruled by an oral agreement struck after its acquisition of Hancor and that it then breached that agreement.

3. ADS’ Assumption of Hancor’s Pre-Acquisition Liability by de Facto Merger

Prior to its 2005 acquisition of Hancor, ADS was Hancor’s competitor and not a party to the contracts made between Han-cor and its sales representatives. Mr. Ra-gen claims ADS’ 2005 acquisition of Han-cor by stock purchase made ADS liable for breaches of the various agreements that occurred prior to 2005. He proposes the Court pierce Hancor’s corporate veil and hold its sole stockholder, ADS, liable for Hancor’s debts stemming from breach of contract. The Court analyzes that in Section 4, infra. He also proposes that ADS’ purchase of Hancor amounted to a de facto merger of the two companies making ADS liable for Hancor’s pre-acquisition liabilities. The Court addresses that theory here.

When an individual or a corporation acquires a corporation in a stock purchase, by default, the acquiring person or corporation does not automatically assume the existing contracts and obligations of the target (acquired company). Nat’l City Bank v. Plechaty Cos., 104 Ohio App.3d 109, 661 N.E.2d 227, 230 (1995) (“A parent corporation is not liable for the debts of its subsidiaries, absent proof the parent exercised complete dominion and control over the subsidiary and such control was used to commit a fraud or injustice.” (citing Belvedere Condo. Unit Owners’ Ass’n. v. R.E. Roark Cos., Inc., 67 Ohio St.3d 274, 617 N.E.2d 1075 (1993))). Mr. Ragen says that the Court should examine whether the purchase represents a de facto merger between ADS and Hancor. While the 2005 acquisition itself gives no indication of a merger between the two companies, Mr. Ragen focuses on the businesses in the years after the transaction and points out that ADS took Hancor’s assets as its own, took over liabilities, began paying Hancor employees and subcontractors (including Mr. Ragen) directly, and generally conducted itself as if the companies merged.

Courts' have examined asset purchases for the signs that the purchase is actually something more and that the purchaser could be liable for the seller’s debts. “[A] corporation that purchases the assets of another corporation is not liable for the contractual liabilities of its predecessor corporation unless (1) the buyer expressly or impliedly agrees to assume such liability; (2) the transaction amounts to a de facto consolidation or merger; (3) the buyer corporation is merely a continuation of the.seller corporation; or (4) the transaction is entered into fraudulently for the purpose of escaping liability.” Welco Indus., Inc. v. Applied Cos., 67 Ohio St.3d 344, 617 N.E.2d 1129, 1133 (1993) (quoting Flaugher v. Cone Automatic Mach. Co., 30 Ohio St.3d 60, 507 N.E.2d 331, 334 (1987)). When a court finds one or more element present, it may deem the sale of assets a de facto merger and allow the purchasing company to be liable for its predecessor’s obligations. Id.

Regarding the first element, Mr. Ragen has pointed to no evidence that ADS expressly assumed Hancor’s liabilities. He has shown, however, that at some point after the acquisition, ADS began paying his commission checks. (Fussner Dep., Doc. 102 at 30-31; Ragen Deck, Doc. 131-1 at ¶ 24; Doc. 131-3 at 138-49 (mix of Hancor and ADS checks); id. at 151 (2007 Form 1099 issued by ADS to Mr. Ragen).) Addressing the second Welco element, while Mr. Ragen has not demonstrated that the original transaction acquiring Hancor amounted to a de facto consolidation or merger, the close integration of the two companies in the ensuing years may be exactly that. {See Doc. 131-3 at 160 (letter on joint Hancor/ADS letterhead terminating Mr. Ragen); Fussner Dep., Doc. 102 at 30 (noting that by 2008, Hancor no longer had any direct employees); id. at 31-39 (explaining that in early 2006, Hancor receipts went directly to ADS accounts and at some time thereafter ADS began paying Hancor payables itself).) Regarding the third Welco factor, Mr. Ragen has also pointed to evidence demonstrating that ADS is a continuation of Hancor, citing the undisputed facts that ADS absorbed the employees and assets of Hancor and manufactures, distributes, and sells Hancor as a brand of ADS. As to the final Welco element, Mr. Ragen has not demonstrated that the defendants undertook any of these actions fraudulently to escape liability.

Notwithstanding the fact that Mr. Ra-gen has met the burden of showing some evidence on three of the four Welco factors (and the criteria are delineated with “or,” meaning this should satisfy the summary judgment standard to go forward), this is not a typical de facto merger case. 617 N.E.2d at 1133. Courts look to the Welco test to see if a corporation has tried to orphan its debts in one entity while moving its producing assets to another. “Such would be the case when one corporation sells its assets to another corporation with the same people owning both corporations. Thus, the acquiring corporation is just a new hat for, or reincarnation of, the acquired corporation. This is actually a reorganization.” Id. (quotation omitted). “This type of transaction is executed to escape liabilities of the predecessor corporation.” Id. In such a case, a nexus exists between the plaintiffs claimed loss and the asset sale; that is, but for the questionable asset sale, the plaintiff might be able to recover.

Mr. Ragen has given the Court no indication that, even if the defendants merged the companies, they did so in order to avoid judgment. The record reflects that the ADS’ and Hancor’s defense for not paying Mr. Ragen more than they did centers on their contrary view of how much commission Mr. Ragen was entitled to and that it is not related to their efforts to consolidate the purchased company.

In Bondex Int’l, Inc. v. Hartford Acc. & Indem. Co., the court considered whether the Welco de facto merger test applied to consider whether — for purposes of insurance coverage and unrelated to escaping liability through corporate form — two companies merged. No. 1:03-CV-1322, 2009 WL 8632648 (ND.Ohio Feb. 10, 2009). “Although the doctrine might be applicable in cases involving an uncompensated plaintiff or a frustrated creditor, nowhere in Welco does the court state that the doctrine is only applicable in such cases.” Id. at *7. This holding would support Mr. Ragen’s use of de facto merger. The Court of Appeals affirmed on other grounds, however, cautioning,

Because we conclude that the policies’ plain language resolves these disputes, we need not consider the district court’s de facto merger analysis. We note, however, that federalism principles caution against a federal court expanding the de facto merger doctrine — a state-law equitable remedy concerning successor liability — into a general rule of contract interpretation. See, e.g., Grantham & Mann, Inc. v. Am. Safety Prods., Inc., 831 F.2d 596, 608 (6th Cir.1987) (explaining that federal courts applying state law must do so “in accordance with the then controlling decisions of the highest state court”) (citations and internal quotation marks omitted).

Bondex Int’l, Inc. v. Hartford Acc. & Indent. Co., 667 F.3d 669, 682 (6th Cir.2011) (emphasis added).

Mr. Ragen springboards his argument regarding merger into his argument that he should have been paid commission whenever ADS legacy products were sold in his Hancor territory, rather than just being paid a commission when legacy Han-cor products were sold there. He has not, however, demonstrated that he wants to add ADS because he is a creditor frustrated by a sale of assets. That is, his reason for asking the court to consider the de facto merger argument resembles the plaintiffs reason in Bondex and he has not show it is related to an accusation that Hancor’s assets have been raided leaving it unable to pay its liabilities. In the spirit of the Court of Appeals’ caution against an expansion of Welco, (Bondex, 667 F.3d. at 682), the Court will grant ADS’ summary judgment motion to the extent that Mr. Ragen wanted to hold ADS liable for Han-cor breaches that occurred prior to the acquisition on the theory that it was, in fact, a merger.

4. Piercing ADS’ Corporate Veil

Finally, Mr. Ragen suggests that the Court should not dismiss ADS as a party because Hancor’s corporate veil should be pierced, and its sole stockholder, ADS, should be jointly liable for any instance where Hancor is liable. Ohio adopted three requirements to pierce the corporate veil that, “balance between the principle of limited shareholder liability and the reality that the corporate fiction is sometimes used by shareholders to protect themselves from liability for their own misdeeds.” Belvedere Condo. Unit Owners’ Assn. v. R.E. Roark Cos., Inc., 67 Ohio St.3d 274, 617 N.E.2d 1075, 1086 (1993). They are: “(1) control over the corporation by those to be held liable was so complete that the corporation has no separate mind, will, or existence of its own, (2) control over the corporation by those to be held liable was exercised in such a manner as to commit fraud or an illegal act against the person seeking to disregard the corporate entity, and (3) injury or unjust loss resulted to the plaintiff from such control and ■wrong.” Id.

Mr. Ragen has pointed to considerable evidence that Hancor’s sole shareholder, ADS, exerted complete control over ADS. Evidence, discussed supra, may tend to show that ADS controlled every detail of its acquired subsidiary’s operations. Nevertheless, complete control is not sufficient to avoid summary judgment. Id. (“[M]ere control over a corporation is not in itself a sufficient basis for shareholder liability.”). “[W]e hold that to fulfill the second prong of the Belvedere test for piercing the corporate veil, the plaintiff must demonstrate that the defendant shareholder exercised control over the corporation in such a manner as to commit fraud, an illegal act, or a similarly unlawful act. Courts should apply this limited expansion cautiously toward the goal of piercing the corporate veil only in instances of extreme shareholder misconduct.” Dombroski v. WellPoint, Inc., 119 Ohio St.3d 506, 895 N.E.2d 538, 545 (2008).

Mr. Ragen points to several cases to support his position, but none stands for the concept that the extreme remedy of piercing the corporate veil can follow compíete shareholder control combined with a contract dispute. These cases do not change the requirement of a nexus between the act and the loss. In Clinical Components, Inc. v. Leffler Indus., Inc., the creditor plaintiff presented evidence that the stockholder systematically transferred assets out of the company as “consulting fees” paid to him and his brother-in-law, then defaulted on a bank note. No. 95-CA-0085, 1997 WL 28246, *4 (Ohio Ct. App. Jan. 22, 1997). The inadequate documentation for the consulting fees around the time the company crossed into insolvency was enough evidence that the shareholder used his complete control to empty the company’s coffers and thus defraud the bank to avoid summary judgment. Id. at *5. Mr. Ragen stretches his analysis of this case to cover the facts in his case, but, whether or not he can show that the defendants contractually owe him more commission and were wrong to not pay him, he has not pointed to evidence that demonstrates the conduct of ADS and Hancor amounts to a fraud to avoid paying him.

Mr. Ragen also cites two cases that stand for the proposition that a violation of Ohio’s Fraudulent Transfer Statute (Ohio Revised Code Section 1336.04) is prima facie evidence sufficient to satisfy the second prong of the Belvedere test. Stewart v. R.A. Eberts Co., Inc., No. 08-CA-10, 2009 WL 2684497 (Ohio Ct.App. Aug. 18, 2009); Fortress Value Recovery Fund I, LLC v. Columbus Components Group LLC, No. 1:11-CV-00200, 2011 WL 1130442 (N.D.Ohio Mar. 28, 2011). The statute, however, sets a high bar of proving that a transfer was made with either the intent to avoid a creditor or the knowledge that it would leave the company without sufficient assets for a current or upcoming transaction. See Flagstar Bank, FSB v. Sellers, No. CA 2009-11-287, 2010 WL 3294683 (Ohio Ct.App.2010) (citing Stewart, 2009 WL 2684497 at ¶¶ 25-26). Mr. Ragen has not pointed to any evidence that ADS transferred Hancor’s assets either with intent to hinder, delay or defraud Mr. Ragen or that ADS prompted Hancor to enter into business with Mr. Ragen while not leaving sufficient assets in Hancor to sustain that business. See Ohio Rev.Code § 1336.04. He has therefore not met the standard for piercing the corporate veil by showing a fraudulent transfer. Mr. Ragen’s dispute with Hancor and ADS sounds in a contract dispute, and the elements of a fraudulent transfer (and the elements of Belvedere) are not met. The Court will not, therefore, pierce the corporate veil and grants summary judgment to ADS on this theory.

5. Summary of ADS’ Potential Liability

Following ADS’ summary judgment motion, Mr. Ragen presented four theories under which the Court should not dismiss ADS as a party and should allow it to potentially be held liable if the Court finds a breach of contract. The Court grants ADS’ request on Mr. Ragen’s theory that ADS voluntarily assumed Hancor’s preacquisition liability, the theory that ADS and Mr. Ragen created a new, oral contract with certain definite terms which ADS then breached, and the theory that Hancor’s corporate veil should be pierced to hold its sole stockholder, ADS, liable.

This leaves only a limited case against ADS for breach of contract. Because the record contains some evidence that ADS became a party to the written manufacturer’s representative agreement, either by supplanting Hancor or by adding itself as a manufacturer, and because Hancor concedes that summary judgment is not appropriate on certain theories of breach, the Court cannot completely grant ADS’ summary judgment motion.

Mr. Ragen has pointed to no evidence showing that ADS has contractual liability other than by supplanting Hancor’s role, either partially or completely. That is, to the extent Mr. Ragen can show that ADS became a party to the contract, Hancor’s liability is reduced. No theory of contract breach stands outside this zero-sum relationship between ADS and Hancor. Nonetheless, ADS remains as a party so Mr. Ragen can advance his theory that ADS became a party to, and then breached, the agreement.

Because ADS and Hancor are fused— that is, in the same role — -for purposes of analyzing whether either breached the agreement, the partial grant of summary judgment on some of Mr. Ragen’s theories of breach apply to ADS as well. To the extent the Court finds evidence of a certain theory of breach lacking against Han-cor and grants partial summary judgment on that theory, the grant extends to ADS as well.

B. Breach of Contract

Mr. Ragen asserts that Hancor and ADS breached the written agreements in several ways. Hancor has moved for partial summary judgment on a number of Mr. Ragen’s theories of breach of contract and the Court will consider these as including ADS to the extent appropriate. Mr. Ragen opposes summary judgment on the breach of contract questions.

1. Territorial and Account Modifications Not Made in Writing

Hancor has indicated that its summary judgment motion does not encompass Mr. Ragen’s assertion that Hancor breached the written agreement by modifying his territory and removing customers without committing either of those changes to writing, except that the removal of the customer Kennedy Culvert is included in the scope of the summary judgment motion. These territory and account modification claims are essentially the claims raised in Mr. Ragen’s summary judgment motion, and the Court noted in the previous section that Hancor had pointed to enough evidence that Mr. Ragen may have waived his right to bring these claims to deny his summary judgment motion and preserve the issue for trial. Hancor acknowledges that Mr. Ragen can point to evidence that the territorial and account modifications (other than the Kennedy Culvert reassignment, which is addressed in Section 3, infra) were breaches and its defense rests on the fact-intensive waiver (and other fact-intensive theories), so these alleged breaches are outside the scope of this Order and are preserved for trial.

2. Exclusive Territory

Mr. Ragen asserts his contracts with Hancor appointed him as an exclusive sales representative for a given territory and that Hancor breached the agreements over the years by not paying him a commission on some of the sales within the appointed territory. In spite of Mr. Ra-gen’s contention to the contrary, a considerable amount of the dispute hinges on this question for two reasons. First, Mr. Ragen would like to use this theory to support his claim to commissions when a Hancor inside sales representative handled an account (as was the case with certain national accounts). Second, and more significant financially, after ADS’ acquisition of Hancor, the two companies (which were formerly competitors in the market) maintained their legacy sales forces, which then overlapped each other in territory. That is, after the merger, as Mr. Ragen continued selling legacy Hancor products in the geographic region in which he had previously sold them, one or more ADS representatives were selling ADS products in the same geography.

Mr. Ragen asserts that because his territory — as created in each of the seven agreements — was exclusive and because ADS assumed the role of “Manufacturer” under the 2001 agreement after the acquisition, he is entitled to commission on every ADS product sold in his territory. He proposes two bases for his exclusivity theory: this Court’s January 19, 2010 Order, 2010 WL 301761, and the language of the contracts, augmented by the parties’ conduct in performing the contract. Hancor says that Mr. Ragen was never an exclusive sales representative and refutes these positions. It further proposes that, even if the agreement made Mr. Ragen exclusive in a territory, he waived his right to collect commissions because he did not raise the issue and instead allowed Hancor to proceed on the assumption that it had fully compensated Mr. Ragen when it paid him on the set of sales it credited to him. The waiver theory is fact intensive and undoubtedly outside the scope of summary judgment, but the Court need not address it because it will grant Hancor’s motion on the exclusivity question based on contract interpretation. In analyzing Mr. Ragen’s theories, the Court focuses not on the weight of the evidence, but on whether Mr. Ragen can present some evidence tending to show he had an exclusive appointment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

a. The Court’s January 19, 2010 Order

In the Court’s January 19, 2010 Order denying, in relevant part, Hancor’s motion to dismiss, the Court found (in the context of ruling on a Rule 12(b)(6) motion),

Nothing in the contract expressly limited the Representative’s commissions to sales he actually procured, and the Court declines to read such a term into the contract. The structure of the contract, which obligated the Representative to hire additional salespeople to sell Hancor products at his own expense within his territory, would make little sense if the Representative were only entitled to commissions on sales for which he personally produced a buyer.... Rather, the contract is most sensibly read in accordance with the plain meaning of its terms: the Representative was to be paid on the basis of the net sales amount collected in his territory.

(Doc. 68 at 3-4 (quotation and citation omitted).)

Mr. Ragen stretches too far the language in this Order on the motion to dismiss. He quotes the Court and contends that the Court’s order makes the question of exclusivity moot because it decides that the language of the contract does not require him personally to make a sale in order to earn a commission on that sale. (Ragen Opp., Doc. 131 at 33.) He proposes this has reduced the issues before the Court: “[T]he actual issue before the court concerns what constitutes Mr. Ragen’s defined territory.” Id. Yet, the Court’s observation in the context of ruling on a motion to dismiss is not properly addressed to the summary judgment question; a conclusory statement by the Court written in the context of deciding a motion to dismiss is not evidence itself that Mr. Ragen can use to defeat a summary judgment motion. Instead, the ruling means that the express terms of the contract do not foreclose the possibility that the territory was exclusively Mr. Ragen’s (and, for that reason, judgment in Hancor’s favor on its motion to dismiss was not appropriate). Mr. Ragen’s evidence of exclusivity remains the contract and its language, not the Court’s Order deciding a motion brought under Federal Rule of Civil Procedure 12(b)(6). The Court must look to the evidence in the record — both the contract itself, which was available when ruling on the motion to dismiss and the other evidence, which was not available in that context — to decide the question of exclusivity.

b. The Agreements’ Language

Mr. Ragen asserts that his agreements with Hancor created an exclusive territorial appointment and that both the contractual language and the parties’ conduct over the span of the relationship substantiate this. The six agreements created between 1992 and 2001 are essentially identical in terms relevant to this discussion. (The other agreement, created in 1988, uses different language, but is not relevant because none of Mr. Ragen’s claims relate to the time under that agreement). The 2001 agreement provided, in relevant part:

APPOINTMENT. Representative is hereby appointed as the Manufacturer’s Direct Sales Representative for all products manufactured by Manufacturer (the “Products”) for the accounts described on the attached territory or account outline (the “Territory”).

(Doc. 52-10 at 1. (Attached to the 2001 agreement are both a customer list and a map, marked “Ragen Associates Sales Territory-CP, R/C, AG Markets (Alba-no = CP Market only)” and with certain territories colored in).)

OBLIGATIONS AND RIGHTS OF REPRESENTATIVE

a) Best Efforts. Representative shall:

i) Use its best efforts to market, promote and sell Products in the Territory by all means at its disposal, including direct sales contracts through personal calls to specifying engineers, dealers, contractors, and stocking distributors.

ii) Maintain, at its own cost and expense, a sufficient number of qualified salespeople as mutually agreed by Manufacturer and the Representative, who will actively solicit orders for the Products in the Territory.

CId. at ¶ 5(a).)

Ctistomers. The Representative shall have the right to solicit and take orders from customers and accounts outside the Territory that are not assigned to a Direct Sales Representative of Manufacturer. Before soliciting such a customer or account, the Representative must receive, in writing, authorization to proceed in selling to such a customer or account.

(Id. at 5(c).)

COMPENSATION. As compensation for the Representative’s services, the Manufacturer shall pay to the Representative a commission on the net sale amount collected. Commission shall be paid by Manufacturer to Representative at the end of each month based upon the previous month’s net sales amount collected after deducting discounts, allowances, taxes, rebates, and returns as described in the Commission Schedule.

(Id. at 7.) A document entitled “Manufacturer’s Representative Commission Schedule” and another entitled “Manufacturer Reps 2001 Incentive Compensation Program” are attached.

The Ohio Supreme Court has explicitly defined the Court’s role when considering questions of contract interpretation:

When confronted with an issue of contract interpretation, our role is to give effect to the intent of the parties. We will examine the contract as a whole and presume that the intent of the parties is reflected in the language of the contract. In addition, we will look to the plain and ordinary meaning of the language used in the contract unless another meaning is clearly apparent from the contents of the agreement. When the language of a written contract is clear, a court may look no further than the writing itself to find the intent of the parties. As a matter of law, a contract is unambiguous if it can be given a definite legal meaning.

Sunoco, Inc. (R & M) v. Toledo Edison Co., 129 Ohio St.3d 397, 953 N.E.2d 285, 292 (2011)

(quotation omitted).

On its face, the contract only says that Mr. Ragen is, “appointed as the Manufacturer’s Direct Sales Representative ... for the accounts described on the attached territory or account outline.” (Doc. 52-10 at ¶ 1.) Each relevant agreement attaches at least a territorial map. This leaves ambiguous whether “the” modifies “Manufacturer” or “Representative.” That is, if Mr. Ragen can advance the theory that the contract appoints him as the representative for Hancor in a given territory, then he may be able to advance the theory that he is entitled to a commission on every sale within that territory. However, if he is just a representative for the manufacturer in a given territory, then the language of the contract may disfavor his theory. Because the language leaves ambiguity, the Court must look further for the parties’ intent. Sunoco 953 N.E.2d at 292; see also State ex rel. Petro v. R.J. Reynolds Tobacco Co., 104 Ohio St.3d 559, 820 N.E.2d 910, 915 (2004) (“Courts resort to extrinsic evidence of the parties’ intent only where the language is unclear or ambiguous, or where the circumstances surrounding the agreement invest the language of the contract with a special meaning.” (quotation omitted)).

Hancor points to the negotiations preceding the 1992 contract as evidence showing that neither its nor Mr. Ragen’s intent was that the appointment of Mr. Ragen as a sales representative was to be exclusive. In the contract negotiation process, Hancor sent a proposed agreement including the words, “appointed as the Manufacturer’s Direct Sales Representative.” Mr. Ragen inserted the word “exclusive” before “Manufacturer’s,” initialing the change and submitting it back to his contact at Hancor for acceptance. (Doc. 119-1 at 6.) Hancor accepted other changes Mr. Ragen proposed, but flatly rejected the addition of the word “exclusive.” Courts give significant weight to terms that are separately negotiated or added to an otherwise standardized agreement. Restatement (Second) of Contracts § 203 (“[Separately negotiated or added terms are given greater weight than standardized terms or other terms not separately negotiated.”). In this case, the inverse can become true; the negotiated exclusion of a handwritten term is a strong indicator of the parties’ intent. See also Dorsey v. Contemporary Obstetrics & Gynecology, Inc., 113 Ohio App.3d 75, 680 N.E.2d 240, 246 (1996) (noting that the most commonly employed parol evidence to determine an ambiguous term’s meaning is evidence of the negotiations); Pharmacia Hepar, Inc. v. Franklin, 111 Ohio App.3d 468, 676 N.E.2d 587, 592 (1996) (“Preliminary negotiations may be considered for the purpose of explaining ambiguous language into a written contract.”). The evidence of this negotiation strongly favors Hancor; a term specifically negotiated and then excluded by the parties speaks strongly to their intent entering the contract.

Mr. Ragen says the Court should look to the parties’ conduct under the agreements to conclude that they executed their duties as if he had territorial exclusivity. The Court may use the parties’ course of performance to create a practical construction of a contract’s ambiguous terms. St. Marys v. Auglaize County. Bd. of Comm’rs, 115 Ohio St.3d 387, 875 N.E.2d 561, 568 (2007); 18 Ohio Jur.3d Contracts § 129. That is, where a term could be read in two ways, the Court can take the parties’ own reading of it — then-practical construction of it — as authoritative. St. Marys 875 N.E.2d at 568; see also Restatement (Second) of Contracts § 202(4) (“Where an agreement involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement.”).

In Mr. Ragen’s favor is that he may be able to show that, even when Hancor hired internal employees to call on customers in Mr. Ragen’s territory, Mr. Ragen still received a commission on sales they generated. (Ragen Dep. Sept. 14, 2011, Doc. 108 at 8-9 (expounding on the internal sales representative program and saying, “Q. So despite the fact that the report itself would indicate that [the inside sales representative] got credit, in fact, Ragen Associates was still supposed to be paid a commission under the inside sales team policy or program? A. Yes.”).) Mr. Ragen even indicated this was the case when the inside sales representative brought in the account himself. (Id. at 9.) Mr. Ragen said that he had no issue with the creation of the inside sales team because it freed up his time to call on bigger accounts without reducing his income, “particularly because I was still being paid a commission on them.” (Id. at 12-13.)

While the inside sales program is evidence of some inclination on Hancor’s part to assign accounts to Mr. Ragen in his territory even when some of the selling was done by Hancor’s own employees, it is not in itself evidence that every sale within the territory generated a commission payable to Mr. Ragen. Hancor points to Mr. Ragen’s concession that he knew that Han-cor assigned other sales representatives to the same geographic territory, just limited to other types of products or