Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT BENNETT, District Judge. TABLE OF CONTENTS I.INTRODUCTION..1450 II. STANDARDS FOR SUMMARY JUDGMENT.1452 III. FACTUAL BACKGROUND.1453 A. Undisputed Facts.. • • • 1453 B. Disputed Facts.1456 IV. LEGAL ANALYSIS.1457 A. Violation Of Franchise Laws.1457 B. Choice Of Law On Tort And Contract Claims.1458 C. Contract Claims.:.1459 1. Unconscionability.1459 a. Ohio law of unconscionability.1460 b. Unconscionability here.1462 2. Breach of contract.1464 3. Breach of covenant of good faith and fair dealing.1465 a. The covenant of good faith and fair dealing under Ohio law.1465 b. Jones’s allegations of breach of good faith.1466 D. Tort Claims.1467 1. Tortious interference with business relationships...1467 a. Tortious interference under Iowa law.1467 b. Jones’s claim of tortious interference.1468 2. Fraudulent misrepresentation.1468 a. Fraudulent misrepresentation under Iowa law.1469 b. The effect of an integration clause under Iowa law ..1470 e. Misrepresentations in the cover letter.!.1471 d. Reliance.1471 3. Fraudulent non-disclosure. 1472 a. Fraudulent non-disclosure under Iowa law.1473 b. WCI’s duty to disclose.1473 c. When does the duty arise?.'.1474 i. One stated test.1474 ii. Other general tests.1474 iii. Tests in Restatement (Second) of Torts § 551 .1475 d. Other elements of the claim.1479 E. WCI’s Counterclaim.1479 V. CONCLUSION.1480 The defendant’s motions for summary judgment on plaintiff’s claims and its own counterclaim in this lawsuit between a distributor and a manufacturer of household appliances have already had two salutary effects. First, they have led to the agreed disposition of some of the plethora of claims originally pleaded by the plaintiff, because the parties now agree there is insufficient factual or legal basis for those particular claims. Thus, the parties and the court may focus their resources on truly contested matters. Second, although the court would ordinarily be required to determine what state’s law applies to what claims in a diversity action such as this, the parties appear to be in agreement on this potentially critical issue as well. Nonetheless, the court must still determine whether genuine issues of material fact require submitting to a jury any of the plaintiffs remaining claims arising from the termination of a distributorship contract in the face of defendant’s motion for summary judgment. Those remaining claims include unconseionability of an at-will termination provision and consequent breach of a distributorship contract, breach of an implied covenant of good faith and fair dealing in a distributorship contract, tortious interference with business relationships, fraudulent misrepresentation, fraudulent non-disclosure, and violation of state franchise laws. Defendant has also moved for summary judgment on its counterclaim for sums due under a statement of account in connection with the distributorship agreement. Although plaintiff does not dispute the sum due, it does contend that judgment should not now be entered on defendant’s counterclaim, because plaintiff may be entitled to damages against the defendant in excess of the sum defendant is owed. I. INTRODUCTION Plaintiff Jones Distributing Company (Jones) filed its original complaint and jury demand in this action on March 22, 1994, against defendants White Consolidated Industries, Inc., and its Frigidaire division. Defendants will be referred to collectively herein as “WCI,” unless the separate conduct of Frigidaire or its employees is at issue. Jones’s claims arise from the termination of its distributorship agreement with WCI in 1993. WCI answered the original complaint on May 16, 1994, also asserting a counterclaim for sums due under a statement of account in connection with the distributorship agreement. Jones answered the counterclaim on May 20, 1994. Considerably later, however, on May 29, 1996, Jones moved for leave to amend its complaint. Leave to amend was granted on July 16, 1996. The claims at issue in the first of WCI’s motions for summary judgment are those stated in this amended and substituted complaint. Nine claims are asserted in the amended and substituted complaint. Jones’s first cause of action, denominated a cause of action for “breach of contract,” asserts that the entire “1993 Franchise Agreement” between the parties is void as unconscionable. It further contends that if the 1993 Agreement is not void in its entirety, provisions providing for termination without cause are nonetheless void and unenforceable by reason of being unconscionable. Furthermore, this cause of action asserts that the 1993 Agreement, which pertains specifically to distribution of goods in South Dakota, did not terminate those portions of a 1987 agreement concerning distribution of goods in Iowa and Nebraska, as well as South Dakota; consequently, Jones alleges, the termination provisions of the 1987 Agreement are still applicable to distribution of goods in Iowa and Nebraska, and have been breached by WCI’s termination of Jones’s distributorship. Finally, this cause of action asserts that WCI breached an agreement arising from a course of dealing and performance that granted Jones an exclusive sales territory by selling products within this exclusive territory without compensating Jones and by terminating Jones’s distributorship agreement and selling in this territory. Second, Jones asserts a cause of action for tortious interference with business relationships, premised on WCI’s direct dealings with and sales to Jones’s customers. Jones therefore asserts that WCI has interfered with the contractual or business relationships between Jones and its customers. Third, Jones asserts violation of the franchise statutes of South Dakota, Nebraska, and Iowa. Fourth, in a cause of action denominated “Fraud, Misrepresentation, Coercion and Duress,” Jones asserts a claim of fraudulent misrepresentation premised on WCI’s alleged repeated assurances that Jones would always be able to sell Frigidaire products, contrary to WCI’s actual termination of its distributorship agreement with Jones. Jones’s fifth cause of action alleges “unjust enrichment,” and is premised on WCI reaping the benefits of Jones’s development of customers for WCI’s products in the region formerly serviced by Jones.. Jones’s sixth cause of action, alleges breach of the implied covenant of good faith and fair-dealing in the contract between the parties. The breach of covenant is premised on WCI’s alleged termination of “override” payments to Jones for sales made directly by WCI to dealers in Jones’s territories and WCI’s alleged failure to inform Jones of its plan to terminate Jones and other distributors even while demanding that Jones sign a new distributorship agreement for 1993 which included substantial changes in the termination provisions of the contract. The seventh cause of action in the amended and substituted complaint alleges violation of the anti-trust laws of the states of South Dakota, Nebraska, and Iowa. Jones’s eighth “cause of action” is essentially a prayer for compensatory and exemplary damages on each of the prior claims. Jones’s ninth cause; of action, added by virtue of its amendment of its original complaint, is a claim of fraudulent non-disclosure. In this cause of action, Jones alleges that in. January of 1993, WCI forwarded a new “distributor agreement” to Jones to sign (the document referred to by the court above as the 1993 Agreement) with a cover letter that failed to set forth any significant changes from prior contracts. However, the 1993 Agreement in fact made a significant change to the termination provisions that had been a part of the preceding series of agreements between the parties, because it added a provision permitting termination by WCI without cause. Jones alleges that WCI proffered this new contract without disclosure of the pertinent termination terms although it had known as far back as 1991 that it intended to terminate distributor contracts across the country and had established a task force to discuss and prepare for the contemplated terminations. The task force’s preparations are alleged to have included eliminating contractual impediments to the terminations of individual distributors. Jones alleges that “special circumstances” existed between Jones and WCI that gave rise to WCI’s duty to disclose the contemplated terminations of distributors. These “special circumstances” include the long-term relationship of the parties and the trust that had developed over numerous years and a prior course of dealing. Jones alleges that the information WCI failed to disclose was material to its signing of the 1993 Agreement, and that Jones relied to its detriment on a continuing relationship when it signed the 1993 Agreement without being advised of or noticing the change in the termination provisions. Certain of these causes of action need not be discussed further. In its resistance to WCI’s motion for summary judgment on Jones’s claims, Jones agreed that summary judgment should be granted in favor of WCI on some claims and those claims should therefore be dismissed. Specifically, Jones “does not assert a resistance to the dismissal” of its unjust enrichment claim. Plaintiffs Memorandum In Resistance To Defendant’s Motion For Summary Judgment On Plaintiff’s Complaint (hereinafter “Jones’s Brief On Its Claims”), pp. 21-22. Furthermore, Jones states, “After reviewing the brief of WCI and completing discovery in this case, Jones does not dispute the authorities or evidence cited by WCI” pertaining to the claim of violation of state anti-trust statutes. Jones’s Brief On Its Claims, p. 32. In light of the lack of resistance to the motion for summary judgment on these claims, WCI’s motion for summary judgment is granted as to Jones’s fifth cause of action — which alleges “unjust enrichment” — and Jones’s seventh cause of action — which alleges violation of the anti-trust laws of the states of South Dakota, Nebraska, and Iowa. On August 19, 1996, WCI filed separate motions for summary judgment on Jones’s claims and on its own counterclaim for sums due under the distributorship agreement. Jones resisted the motions for summary judgment on September 3, 1996. On September 9, 1996, WCI filed reply briefs in support of both motions for summary judgment. WCI’s grounds for summary judgment and Jones’s resistances thereto are recounted as to each claim or counterclaim in the pertinent portion of the court’s legal analysis. Both parties requested oral arguments on the motions for summary judgment. In light of the imminence of trial, which is set to begin on October 15, 1996, the court held expedited oral arguments on the motions for summary judgment on September 10, 1996. Plaintiff Jones Distributing Company was represented at oral arguments by counsel Steven R. Jensen ofCrary, Huff, Inkster, Hecht & Sheehan, P.C., in Sioux City, Iowa. Defendants WCI and Frigidaire were represented by counsel Stephen D. Turner and Ellen S. Carmody of Law, Weathers & Richardson, P.C., in Grand Rapids, Michigan. Before turning to the legal analysis of the motions for summary judgment, the court must first recount the standards applicable to motions for summary judgment, as well as identify the undisputed and disputed facts in the case. II. STANDARDS FOR SUMMARY JUDGMENT The Eighth Circuit Court of Appeals recognizes “that summary judgment is a drastic remedy and must be exercised with extreme care to prevent taking genuine issues of fact away from juries.” Wabun-Inini v. Sessions, 900 F.2d 1234, 1238 (8th Cir.1990). On the other hand, the Federal Rules of Civil Procedure have authorized for nearly 60 years “motions for summary judgment upon proper showings of the lack of a genuine, triable issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.Zd 265 (1986). Thus, “summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’” Wabun-Inini, 900 F.2d at 1238 (quoting Celotex, 477 U.S. at 327, 106 S.Ct. at 2554-55); Hartnagel v. Norman, 953 F.2d 394, 396 (8th Cir.1992). The standard for granting summary judgment is well established. Rule 56 of the Federal Rules of Civil Procedure states in pertinent part: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party’s favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party’s favor as to all or any part thereof. (c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(b) & (c) (emphasis added); see also Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Reliance Ins. Co. v. Shenandoah South, Inc., 81 F.3d 789, 791 (8th Cir.1996); Beyerbach v. Sears, 49 F.3d 1324, 1325 (8th Cir.1995); Munz v. Michael, 28 F.3d 795, 798 (8th Cir.1994); Roth v. U.S.S. Great Lakes Fleet, Inc., 25 F.3d 707, 708 (8th Cir.1994); Cole v. Bone, 993 F.2d 1328, 1331 (8th Cir.1993); Woodsmith Publishing Co. v. Meredith Corp., 904 F.2d 1244, 1247 (8th Cir.1990); Wabun-Inini, 900 F.2d at 1238 (citing Fed.R.Civ.P. 56(c)). A court considering a motion for summary judgment must view all the facts in the light most favorable to the nonmoving party, here Jones, and give Jones the benefit of all reasonable inferences that can be drawn from the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 415 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)); Rifkin v. McDonnell Douglas Corp., 78 F.3d 1277, 1280 (8th Cir.1996); Marts v. Xerox, Inc., 77 F.3d 1109, 1112 (8th Cir.1996); Munz, 28 F.3d at 796; Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir.1994); Johnson v. Group Health Plan, Inc., 994 F.2d 543, 545 (8th Cir.1993); Burk v. Beene, 948 F.2d 489, 492 (8th Cir.1991); Coday v. City of Springfield, 939 F.2d 666, 667 (8th Cir.1991), cert. denied, 502 U.S. 1094, 112 S.Ct. 1170, 117 L.Ed.2d 416 (1992). Proeedurally, WCI bears “the initial responsibility of informing the district court of the basis for [its] motion and identifying those portions of the record which show lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53); see also Reed v. Woodruff County, Ark., 7 F.3d 808, 810 (8th Cir.1993). WCI is not required by Rule 56 to support its motions for summary judgment on both Jones’s claims and its own counterclaim with affidavits or other similar materials negating the opponent’s claim. Id. “When a moving party has carried its burden under Rule 56(c), its opponent must do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356. Jones is required under Rule 56(e) to go beyond the pleadings, and by affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 511 (8th Cir.1995); Beyerbach, 49 F.3d at 1325. Although “direct proof is not required to create a jury question, ... to avoid summary judgment, ‘the facts and circumstances relied upon must attain the dignity of substantial evidence and must not be such as merely to create a suspicion.’” Metge v. Baehler, 762 F.2d 621, 625 (8th Cir.1985) (quoting Impro Prods., Inc. v. Herrick, 715 F.2d 1267, 1272 (8th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1282, 79 L.Ed.2d 686 (1984)), cert. denied sub nom. Metge v. Bankers Trust Co., 474 U.S. 1057, 106 S.Ct. 798, 88 L.Ed.2d 774 (1986). The necessary proof that the nonmoving party must produce is not precisely measurable, but the evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Allison, 28 F.3d at 66. In Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11, Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2552-53, and Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1355-56, the Supreme Court established that a summary judgment motion should be interpreted by the trial court to accomplish its purpose of disposing of factually unsupported claims, and the trial judge’s function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). The trial court, therefore, must “assess the adequacy of the nonmovants’ response and whether that showing, on admissible evidence, would be sufficient to carry the burden of proof at trial.” Hartnagel, 953 F.2d at 396 (citing Celotex, 477 U.S. at 322, 106 S.Ct. at 2552). If Jones fails to make a sufficient showing of an essential element of a claim with respect to which it has the burden of proof, then WCI is “entitled to judgment as a matter of law.” Celotex, 477 U.S. at 323, 106 S.Ct. at 2552; Woodsmith, 904 F.2d at 1247. However, if the court can conclude that a reasonable trier of fact could return a verdict for the nonmovant, then summary judgment should not be granted. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Burk, 948 F.2d at 492; Woodsmith, 904 F.2d at 1247. With these standards in mind, the court turns to consideration of the disputed and undisputed facts that form the factual background to the claims and counterclaim of the parties and WCI’s two motions for summary judgment. III. FACTUAL BACKGROUND . A Undisputed Facts The record reflects that the following facts are undisputed. Plaintiff Jones Distributing Company is a closely-held Iowa corporation that was, until recently, involved in the regional distribution of appliances, primarily those manufactured by WCI, to a dealer network. Defendant WCI is a Delaware corporation with its principal place of business in Cleveland, Ohio. WCI is a wholly owned subsidiary of A.B. Electrolux Corporation, a Swedish corporation. WCI is a diversified manufacturing company, which, through its Frigidaire Division, manufactures and sells major home appliances under various brand names, including Frigidaire, White-Westinghouse, Kelvinator, Gibson, and Tappan. As WCI acquired these various brands, it initially maintained separate sales organizations for each of them. However, the various sales organizations were consolidated in 1991. Jones first became associated with Frigidaire in 1973 when Frigidaire was a subsidiary of General Motors. In May of 1973, Jones entered into a “Distributor Sales and Service Agreement” with Frigidaire to distribute and service Frigidaire appliances. Jones first became associated with WCI when WCI acquired Frigidaire in 1979. From 1979 until the spring of 1994, the focus-of Jones’s business was the distribution of Frigidaire appliances, although it also sold other brands not associated with WCI. Jones and Frigidaire (as a division of WCI) entered into a series of agreements for the sale and service of Frigidaire appliances in January of 1981, January of 1984, and January of 1987. None of these agreements with WCI referred to the relationship between WCI and Jones as a “franchise,” although that term had occasionally been used in prior contracts with Frigidaire. Under the 1981, 1984, and 1987 agreements, WCI granted Jones a “nonexclusive” distributorship. In other words, Jones had the right to distribute other companies’ products, and in fact did so; additionally, WCI had the right to sell directly to dealers or other customers in' Jones’s designated territory, which it also in fact did do. Although the contracts provided that WCI could make sales direct to dealers, WCI usually paid “overrides” to distributors for some sales WCI made to dealers within the distributor’s territory. In 1991, however, WCI discontinued payment of overrides to. Jones for sales WCI made directly to Nebraska Furniture Mart, which otherwise would have been sales in Jones’s territory. Each of the contracts for 1981, 1984, and 1987 was a standard form contract presented by WCI to Jones for Jones to sign without negotiation of specific terms other than designated territory. Jones’s designated territory under these agreements included most of the counties of South Dakota and several counties in Iowa and Nebraska. Although the 1981 and 1984 agreements were for a specific duration, the 1987 agreement was of indefinite duration, providing that it could be terminated by mutual consent of the parties, voluntarily by Jones, for cause by WCI, or by proffer by WCI of a superseding distributorship agreement. Specifically, the 1987 Agreement provided as follows: The terms of this Agreement shall commence on the effective date first set forth herein above and, subject to its earlier termination in accordance with,the provi-’ sions of Section 15 of this Agreement, continue until superseded by revision of execution of a new Agreement. In the event a new and superseding form of Frigidaire Products Distributor Sales Agreement is offered by Frigidaire to Authorized Frigidaire Products Distributors at any time while this Agreement is in effect, Frigidaire may terminate this Agreement by prior written notice to Distributor, provided Frigidaire offers Distributor such new and superseding form of Erigidaire Products Distributor Sales Agreement to replace existing Agreement. Defendant’s Exhibit 6A, 1987 Agreement, ¶ 5. The 1981, 1984, and 1987 agreements otherwise had identical provisions for termination. Each ■ allowed Jones to terminate voluntarily, but stated that WCI could terminate unilaterally only for certain specified causes. Those specified causes included the failure to perform under the agreement, or termination, death, or incapacity of the primary manager of Jones. The agreements could also, each be terminated by mutual. consent. Each of the agreements executed in 1981,1984, and 1987 provided for distribution only of Frigidaire brand products. However, beginning in about 1990, Jones also began to distribute other WCI brands, specifically, Tappan and White-Westinghouse. In December of 1992, WCI sent Jones another distributor sales agreement to become effective January 1, 1993 (the “1993 Agreement”) that WCI intended to supersede the 1987 Agreement. The 1993 Agreement is in fact three separate form contracts, otherwise identical, for Frigidaire, Tappan, and White-Westinghouse products. Thus, the 1993 Agreement for the first time specifically covers Jones’s authority to distribute brands other than Frigidaire. The cover letter accompanying the proffered 1993 Agreement explained that there were separate contracts for Frigidaire, 'White-Westinghouse, and Tappan products, requested that Jones “read and verify all the typed data to be sure that it is correct,” requested that the appropriate officer execute the contracts, and closed with “[t]hanks for helping update our document files.” Plaintiffs Exhibit N. The cover letter does not identify any changes in the document from previous standard form agreements. The “typed data” referred to in the cover letter includes the portions of the three separate contracts that identify the distributor, the brand in question, and the “Area of Primary Responsibility.” Each brand contract in the 1993 Agreement identifies only counties in South Dakota as Jones’s “Area of Primary Responsibility.” Stewart Hartman did not immediately sign the contract on behalf of Jones. Instead, Hartman signed the 1993 Agreement on March 28,1993. In his deposition, Hartman states that he did not read carefully the entire 1993 Agreement and did not have it reviewed by counsel prior to signing it. However, the delay in signing the 1993 Agreement, at least in part, resulted from Hartman’s concern that the 1993 Agreement listed only South Dakota counties as Jones’s “Area of Primary Responsibility.” Because the parties dispute other factual matters concerning the signing of the 1993 Agreement, the court passes on to the undisputed contents of that agreement. The 1993 Agreement provides for termination upon the mutual consent of the parties, and for termination by Frigidaire upon the happening of certain specified events, as had prior agreements. However, it also contains a new provision, in Section V(b), which provides for termination by either party, not just Jones, without cause. The pertinent provision is as follows: V. Duration and Termination This Agreement shall be in effect from the date of execution until terminated as provided herein: * * * # * (b) This Agreement may be terminated by either party at any time, with or without cause, subject however, to the applicable provisions of state laws, if any, upon giving of sixty (60) days prior written notice by certified mail to the other party. * * * * * * 1993 Agreement, p. 6 (in each brand contract). No representative of Jones either noticed or questioned this new provision pri- or to signing the 1993 Agreement. At the end of 1993, WCI delivered notices of termination to approximately 20 independent distributors, including Jones. Jones’s termination was to become effective March 31,1994. Currently, WCI uses independent distributors only for its Gibson brand. The parties agree that WCI had been evaluating the possible termination of independent distributors in favor of direct sales to dealers for some years. They disagree, however, as to precisely when the decision was made to terminate Jones, and specifically, whether that decision was made prior to proffering Jones the 1993 Agreement. B. Disputed Facts The record demonstrates that the following facts are in dispute. The question to be addressed below, in the court’s legal analysis, is whether these disputes of fact are material under the governing law, such that they preclude summary judgment on any of Jones’s claims. See, e.g., Fed.R.Civ.P. 56(c); Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Beyerbach, 49 F.3d at 1326; Hartna-gel, 953 F.2d at 394. The first dispute of fact asserted by Jones pertains to the circumstances under which Stewart Hartman eventually signed the 1993 Agreement. As indicated above, there is no dispute that Hartman did not read carefully the entire 1993 Agreement; nor is there any dispute that he did not have counsel review the. document, or that no representative of Jones noticed or questioned the new termination provision. Furthermore, the parties agree that Hartman’s three-month delay in signing the 1993 Agreement was at least in párt the result of concerns over the apparent change in Jones’s “Area of Primary Responsibility” to include only South Dakota counties, not the counties it had previously serviced in Iowa and Nebraska. Jones contends that Hartman contacted Jeff Baker of Frigidaire to ask about the apparent change in territory, but was assured that Jones could sell anywhere and not to worry about the designated territory. Jones contends further that Baker contacted Hartman in March of 1993 to ask why the 1993 Agreement had never been signed. Jones contends that Baker told Hartman that if the various contracts constituting the 1993 Agreement were not signed and returned immediately, “Jones would be cut off’ from receiving further appliances from Frigidaire. Only then did Hartman sign and return the 1993 Agreement. WCI contends that Jones made no contact with WCI or Frigidaire personnel to clarify any aspect of the 1998 Agreement prior to signing it. Jones contends that Hartman’s contact with Baker also demonstrates that there is a genuine issue of material fact as to whether the parties intended the 1993 Agreement to supersede the 1987 Agreement as to the Iowa and Nebraska counties Jones serviced under the 1987 Agreement. However, WCI points to the language of the 1993 Agreement, which states that it supersedes all prior agreements as to the “products” in question as establishing beyond dispute that the 1993 Agreements, covering all WCI “products” Jones distributed, superseded entirely the 1987 Agreement. WCI specifically contends that the 1993 Agreement was intended to change Jones’s territory by limiting it to South Dakota. Jones also contends that there is a genuine issue of material fact as to WCI’s plans to terminate distributors. Jones contends that the president of Frigidaire established a “task force” in 1991, headed by Caroll Woods, to evaluate the existing distributorship method and the possible termination of existing distributorship agreements. Jones contends, on the basis of documents obtained in discovery, that the task force held several meetings and that participants were specifically instructed to keep their activities confidential and maintain a “business-as-usual” face on things. Jones further asserts that the documents obtained in discovery demonstrate that WCI established a detailed plan for termination of distributors, including assessment of potential litigation costs, the effect of the termination on specific distributors, and the need to change the contracts in force with distributors to include “without cause” provisions. Jones contends that this documentary evidence and deposition testimony of certain Frigidaire employees raise a genuine issue of material fact as to the truthfulness of Caroll Woods’ assertions that there were no discussions in the task force Woods headed concerning terminations of specific distributors until the late summer or fall of 1993. WCI asserts that the record demonstrates that the task force- decided to termi--nate only distributors in populated areas in 1991, but that the termination of rural distributors, such as Jones, lay dormant until 1993. In fact, WCI asserts that its task force specifically determined that rural distributors should be maintained during review of the status of distributorships in 1992. WCI specifically denies that any decision was made to terminate Jones until shortly before WCI actually sent Jones the termination letter in December of 1993. TV. LEGAL ANALYSIS As the court observed above, Jones does not resist WCI’s motion for summary judgment on Jones’s claims of unjust enrichment or violation of state antitrust laws. Summary judgment in WCI’s favor will therefore be granted on these claims, and they will be dismissed from the action. The remaining claims, however, must be considered in more detail. A Violation Of Franchise Laws The court’s legal analysis begins with Jones’s claim that WCI violated the franchise laws of the states of South Dakota, Iowa, and Nebraska. WCI contends that all three of the state franchise acts it is alleged to have violated require, as a prerequisite to suit, a showing that Jones has paid a franchise fee. Jones concedes as much. WCI contends that it is undisputed that Jones never paid a direct franchise fee. Furthermore, WCI contends that any of several “indirect” franchise fees it anticipates Jones might assert were paid were nothing more than normal business expenses. WCI opines that Jones might assert indirect franchise fees on the basis of claims that (1) it was forced to pay higher prices for product than certain dealers were paying; (2) it was required to train employees at approved WCI training facilities at Jones’ expense; (3) it was required to participate in advertising of WCI products; (4) it was required to maintain certain excess amounts of inventory; and (5) it was required to maintain offices and warehouses within the states of Nebraska, Iowa, and South Dakota, where it had to rent or lease showroom space, citing Stewart Hartman’s deposition testimony. WCI cites contrary portions of the record indicating that the asserted “fee” either was not incurred or would have been incurred in the normal course of WCI’s business. Jones’s resistance to summary judgment on these claims of violation of franchise laws, in its entirety, is as follows: WCI apparently agrees that Jones can establish a claim under either the Iowa, South Dakota or Nebraska franchise statutes upon sufficient showing of franchise fee [sic]. Based upon WCI’s brief, Jones does not believe that WCI is otherwise contesting the franchise claim on summary judgment. Jones does not dispute that it is necessary under Iowa law and the other applicable statutes to show that a franchise fee existed in order to make a claim under the Iowa or other states[’] franchise statutes. Based upon a review of WCI’s brief, Jones does not believe that the court can grant summary judgment as a matter of law. Jones believes that each of these claims as to whether they constitute an indirect franchise fee or a requirement of business are issues of fact which should be determined at the time of trial. Jones requests that the court deny summary judgment on the indirect franchise fee to permit it to present evidence at the time of trial on this issue. Based upon the state of the record as set forth in WCI’s brief, Jones does not believe that summary judgment is appropriate on the franchise fee issue. Jones’s Brief On Its Claims, p. 22. The court has reviewed Jones’s statement of facts and all of the appended documents, but finds no reference anywhere to asserted indirect franchise fees. Furthermore, Jones’s argument in support of its franchise law claims fails to rebut any of WCI’s contentions that the possible “indirect” franchise fees WCI suggested Jones might raise was anything but a normal business expense. Jones has therefore failed to meet its burden in resisting summary judgment. As to the franchise law claims, WCI has more than met its “initial responsibility of informing the district court of the basis for [its] motion and identifying those portions of the record which show lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53); see also Reed, 7 F.3d at 810. However, this appears to be a case in which Jones is relying on no more than a “metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356. Once again, Jones is required under Rule 56(e) to go beyond the pleadings, and by affidavits, or by the “depositions, answers to interrogatories, and admissions on file,” designate, that is, “set forth,” “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; McLaughlin, 50 F.3d at 511; Beyerbach, 49 F.3d at 1325. Here, Jones has offered nothing like facts and circumstances that attain the dignity of “substantial evidence,” and instead relies upon comments that, at best, ‘“merely .... create a suspicion,’ ” if, indeed, they go so far. Metge, 762 F.2d at 625 (quoting Impro Prods., Inc., 715 F.2d at 1272). No “reasonable jury,” the court finds, based on the bald and unsupported comments Jones has offered in its brief, “could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Allison, 28 F.3d at 66. Because Jones has failed to make a sufficient showing of an essential element of its claim of violation of franchise laws, WCI is “entitled to judgment as a matter of law” on that claim. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552-53; Woodsmith, 904 F.2d at 1247. B. Choice Of Law On Tort And Contract Claims The remaining claims are therefore “contract” and “tort” claims. The court has twice in recent years confronted the often knotty problem of what law applies to specific common-law claims in a diversity action. See Harlan Feeders, Inc. v. Grand Labs., Inc., 881 F.Supp. 1400 (N.D.Iowa 1995); Curtis 1000, Inc. v. Youngblade, 878 F.Supp. 1224, 1251-54 (N.D.Iowa 1994). To resolve the issue of which state’s law applies to Jones’s claims, the court looks to the eonflictof-laws or choice-of-law rules of the state of Iowa, because' in an action based upon diversity of citizenship jurisdiction, a federal district court must apply the substantive law of the state in which it sits, including its conflict-of-laws or choice-of-law rules. Harlan Feeders, Inc., 881 F.Supp. at 1403-04 (citing, inter alia, Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941)). Furthermore, the first step in determining any choice-of-law question is to determine the proper characterization of what kind of case is involved, and the law of the forum controls this question as well. Id. at 1404. In this ease, the court is presented with both contract claims — Jones’s claims of breach of contract, unconscionability, and breach of covenant of good faith and fair dealing — and tort claims — Jones’s claims of fraudulent misrepresentation, fraudulent non-disclosure, and interference with business relationships. The parties agree that Ohio law, the chosen law of the contract, applies to Jones’s contract claims, while Iowa law applies to the tort claims. The court concurs on the basis of the factors and tests set forth more fully in Harlan Feeders and Curtis 1000. Therefore, the court may turn to disposition of the motions for summary judgment on the various claims guided by the appropriate body of substantive state law. C. Contract Claims Jones asserts three separate, but sometimes interrelated contract claims: uncon-scionability, breach of contract, and breach of covenant of good faith and fair dealing. The court begins its discussion with the uncon-scionability claim, because the breach of contract claim or claims in part depend upon the question of unconscionability of the “without cause” termination clause of the 1993 Agreement. 1. Unconscionability Jones’s first cause of action, inter alia, asserts that the entire 1993 Agreement between the parties is void as unconscionable. It further contends that if the 1993 Agreement is not void in its entirety, provisions providing for termination without cause are nonetheless void and unenforceable by reason of being unconscionable. The parties appear to agree that the Uniform Commercial Code (UCC) governs the question , of the unconscionability of a clause of a distributorship contract. WCI has moved for summary judgment on Jones’s unconscionability claim on several grounds. First, WCI argues that unconscionability is rarely found in commercial contracts. Next, WCI argues that the “without cause” clause is neither procedurally nor substantively unconscionable, because Jones had over three months to decide whether or not to enter into the contract, and no court has held that a mutual “without cause” termination clause is substantively unconscionable. Although Jones agrees with. WCI that the court determines unconsciona-bility as a matter of law, it argues, in the first instance, that the court should not make such a determination until the parties have been afforded a full hearing to show uncon-scionability, which should include evidence of the commercial setting, purpose, and effect of the clause in question. Furthermore, Jones argues, courts have found various contract clauses unconscionable in a commercial setting, asserting that, procedural unconsciona-bility can be outcome-determinative of substantive unconscionability. Furthermore, Jones contends that, in the circumstances, it had no meaningful choice but to accept the 1993 Agreement and that the “without cause” termination clause was unreasonably favorable to WCI. a. Ohio law of uneonscionability Under Ohio law, whether or not a contract or contractual provision is unconscionable is a question for the court to determine as a matter of law. Ohio Rev.Code § 1302.15 (UCC 2-302). “Uneonscionability is generally recognized to include an absence of meaningful choice on the part of one of the parties to a contract, combined with contract terms that are unreasonably favorable to the other party.” Collins v. Click Camera & Video, Inc., 86 Ohio App.3d 826, 621 N.E.2d 1294, 1299 (1993); Orlett v. Suburban Propane, 54 Ohio App.3d 127, 561 N.E.2d 1066, 1069 (1989); see also Ohio Rev.Code § 1302.15 (UCC 2-302), Official Comment (a contractual clause is “unconscionable” only where it is so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract). Thus, under Ohio law, two factors must be present in order to establish that a contract or one of its provisions is unconscionable: (1) the terms of the contract are unfair and unreasonable, i.e., the terms are “substantively unconscionable,” and (2) the individualized circumstances of the parties were such that no voluntary meeting of the minds was possible, i.e., there was “procedural unconscionability.” Collins, 621 N.E.2d at 1299. “One must allege and prove a ‘quantum’ of both prongs in order to establish that a particular contract is unconscionable.” Id. (quoting White & SummeRS, UnifoRm Commercial Code, 219, § 4-7 (1988)). The Ohio Court of Appeals has clarified these two requirements as follows: Substantive uneonscionability involves those factors which relate to the contract terms themselves and whether they are-commercially reasonable. Because the determination of commercial reasonableness varies with the content of the contract terms at issue in any given case, no generally accepted list of factors has been developed for this category of uneonscionability.... Procedural uneonscionability involves those factors bearing on the relative bargaining position of the contracting parties, e.g., age, education, intelligence, business acumen and experience, relative bargaining power, who drafted the contract, whether the terms were explained to the weaker party, whether alterations in the printed terms were possible, whether there were alternative sources of supply for the goods in question. Collins, 621 N.E.2d at 1299 (internal quotation marks and citations omitted). As to procedural uneonscionability, in Collins, the Ohio court held that where the assertedly weaker party had extensive business education and experience, and saw, but failed to read, the clause in question, even assuming that the clause could not have been bargained over, the inability to bargain alone was insufficient to establish procedural un-conscionability. Id. at 835, 621 N.E.2d at 1300 (citing Richard A, Berjian, D.O., Inc. v. Ohio Bell Tel. Co., 54 Ohio St.2d 147, 8 O.O.3d 149, 375 N.E.2d 410, 416 (1978)). The court was also persuaded to find no uncon-scionability in a limitations clause by the fact that there were certainly other places the plaintiff could have gone for services, and by the lack of evidence that no one would have been willing to' negotiate with the plaintiff over the clause he complained of, even though such clauses were standard in the industry. Id. Some time ago, the Ohio Court of Appeals established further requirements for a showing of uneonscionability: Our research on the problem makes clear that the uneonscionability of a clause is to be judged not in the abstract, but rather in its commercial setting. We believe that in order to prove unconscionableness in the termination clause, there must be a showing, not only that the terms thereof are onerous, oppressive or onesided, but also that the terms bear no reasonable relation to the business risks; the showing depends on the commercial environment and cannot be made from the face of the contract alone. We are of the further opinion that, under these circumstances, a hearing should be had to make such determination, and that such a hearing is mandatory rather than discretionary once the trial court accepts a possibility of urieonscionability. Central Ohio Co-operative Milk Producers, Inc. v. Rowland, 29 Ohio App.2d 236, 58 O.O.2d 421, 281 N.E.2d 42, 44 (1972). The court of appeals therefore reversed the district court’s summary judgment finding that the termination clause of the contract in question was unconscionable, because such a finding was made without an evidentiary hearing to determine the commercial setting, purpose, and effect of the clause as required by Ohio Rev.Code § 1302.15(B). Id. at 240, 281 N.E.2d at 45-45. These or very similar principles have been applied by other courts specifically considering the unconscionability of termination clauses in distributorship agreements. For example, in Highway Equip. Co. v. Caterpillar, Inc., 908 F.2d 60 (6th Cir.1990), the Sixth Circuit Court of Appeals, applying Illinois law, held that “[t]o be unconscionable, a contract must be one “which no man in his senses, not under delusion, would make, on the one hand, and which-no fair and honest man could accept, on the other.’ ” Highway Equip., 908 F.2d at 65 (quoting Neal v. Lacob, 31 Ill.App.3d 137, 334 N.E.2d 435, 439 (1975), in turn quoting Hume v. United States, 132 U.S. 406, 410, 10 S.Ct. 134, 136, 33 L.Ed. 393 (1889)). The court found that the test poses “a very great burden,” and that the plaintiff distributor in the case before it had not met that burden. Id. The court considered elements of both procedural and substantive unconscionability, because it noted the substantive fairness of the termination-at-will provision as giving the parties “equal rights,” and the procedural fairness of the provision in light of the business sophistication of the distributor’s representative. Id. Similarly, the Seventh Circuit Court of Appeals has recognized that Indiana courts have defined an unconscionable contract as “one which contains unreasonable or unknown terms and is the product of inequality of bargaining power.” See [Piskorowski v. Shell Oil Co., 403 N.E.2d 838,] 846-47 [ (Ind.Ct.App.1980) ] (citing Weaver v. American Oil Co., 257 Ind. 458, 276 N.E.2d 144 (197[1])) (emphasis in original). This definition makes clear that there are two conjunctive elements of an unconscionability claim: one substantive, the other procedural, where substantive unconscionability refers to the content of the contract and procedural un-conseionability refers to the circumstances under which the contract was negotiated and signed. Communications Maintenance, Inc. v. Motorola, Inc., 761 F.2d 1202, 1209 (7th Cir.1985). The appellate court upheld the district court’s finding of no substantive unconsciona-bility, and therefore did not reach the issue of whether there was procedural unconscio-nability, thus indicating that both elements must be shown. Id. at 1210; see also Pennington’s, Inc. v. Brown-Forman Corp., 785 F.Supp. 1412, 1415-16 (D.Mont.1991) (attempting to determine what Montana law of unconscionability would be as to a termination clause in a distributorship agreement that provided for termination without cause upon thirty days’ notice, and examining both procedural unconscionability, in terms of surprise and bargaining power, and substantive unconscionability, in terms of reasonableness), aff'd, 2 F.3d 1157 (9th Cir.1993) (Table decision); Oreman Sales, Inc. v. Matsushita Elec. Corp., 768 F.Supp. 1174, 1182 (E.D.La.1991) (under Louisiana law, a party asserting unconscionability of a termination clause in a distributorship agreement must show both substantive and procedural unconscionability); General Aviation, Inc. v. Cessna Aircraft Co., 703 F.Supp. 637, 646 (W.D.Mich.1988) (considering both substantive and procedural unconscionability of a termination clause in a distributorship contract), affd in part and rev’d in part on other grounds, 915 F.2d 1038 (6th Cir.1990) (unconscionability not at issue on appeal); Blalock Machinery & Equip. Co., Inc. v. Iowa Mfg. Co. of Cedar Rapids, Iowa, 576 F.Supp. 774, 778 (N.D.Ga.1983) (elements of unconscionability claim are proof (1) that plaintiff “had no meaningful choice but to deal with the defendant and accept the contract as offered and (2) the termination clause was unreasonably favorable to the defendant,” citing Corenswet, Inc. v. Amana Refrigeration, Inc., 594 F.2d 129, 139 (5th Cir.), cert. denied, 444 U.S. 938, 100 S.Ct. 288, 62 L.Ed.2d 198 (1979)). b. Unconscionability here Looking to the first prong of the test applied by the Ohio courts, the court finds that the mutual “without cause” or “at-will” termination clause is not substantively unconscionable on its face. Indeed, courts have uniformly rejected claims of unconscionability of at-will termination clauses in distributorship agreements. See Highway Equip. Co., 908 F.2d at 65 (finding that the at-will termination provision in a distributorship agreement was not substantively unconscionable, because it gave the parties “equal rights,” allowing the distributor to switch over to a competitor’s equipment if the manufacturer’s products were selling slowly; the court observed that the distributor’s position “would invalidate thousands of similar termination-at-will clauses in existing contracts,” and concluded, “The mutual, no-cause termination clause [was] fair on its face and [was] not voidable.”); Communications Maintenance, Inc., 761 F.2d at 1209-10 (the district court properly held that a thirty-day notice of termination provision was not substantively unconscionable, because it found that thirty days was reasonable and adequate notice, and was . supported by its prior holding that a twenty-eight day notice of termination provision in a distributorship agreement of indefinite duration was reasonable under Indiana’s version of the UCC, Ind.Code 26-1-2-309, citing Rockwell Eng’g Co., Inc. v. Automatic Timing & Controls Co., 559 F.2d 460, 463 (7th Cir.1977)); Walker v. U-Haul Co. of Mississippi, 734 F.2d 1068, 1075 (5th Cir.1984) (the district court held that a termination provision in a distributorship agreement that provided for termination “for any reason” was not unconscionable, and the plaintiff distributor did not challenge that decision on appeal; however, the court characterized its prior holding in Corenswet, infra, as holding that “a manufacturer may act arbitrarily in terminating a business relationship with a distributor, if arbitrariness is authorized by a contractual provision”); Corenswet, Inc. v. Amaya, Refrigeration, Inc., 594 F.2d 129, 138-39 (5th Cir.) (applying Iowa law, the court observed that the UCC “does not ipso facto bar unilateral arbitrary terminations of .distributorship agreements,” and found that unrestricted termination clauses “can have the salutary effect of permitting parties to end a soured relationship without consequent litigation. Indeed when, as here, the power of unilateral termination without cause is granted to both parties, the clause gives the distributor an easy way to cut the knot should he be presented with an opportunity to secure a better distributorship from another manufacturer”; the court found that the contract expressly permitted the manufacturer to terminate the distributor without cause, and therefore the distributor had not shown the likelihood of success on the merits necessary to support a preliminary injunction), cert. denied, 444 U.S. 938, 100 S.Ct. 288, 62 L.Ed.2d 198 (1979); Pennington’s, Inc., 785 F.Supp. at 1416 (finding a termination clause in a distributorship agreement was not substantively unconscionable, “since it provided both parties to the agreement the same right to terminate without cause on thirty day’s notice.”); Oreman Sales, 768 F.Supp. at'1182 (“[Ajffording the same rights of termination to either side, the clause does not favor either side; while the termination here may have adversely affected Oreman more than Panasonic, it does not follow — especially when viewed from the time the agreement was made — that the clause itself thus favors Panasonic. As'the numerous cases ... upholding substantively identical termination clauses show, the clause is not so one-sided as to be unreasonable. In sum, no jury could find the clause unconscionable”; emphasis in the original, quotation marks and citations omitted); General Aviation, Inc., 703 F.Supp. at 646 (both parties had an unrestricted right under the agreement to decline to renew without cause); Premier Wine & Spirits, 644 F.Supp. at 1438 (also upholding the substantive fairness of a termination clause in a distributorship agreement that provided for termination without cause upon thirty day’s notice); Blalock Mar chinery & Equip. Co., Inc., 576 F.Supp. at 778 (a termination clause was not “unreasonably favorable” to the manufacturer where it gave either party the power unilaterally to terminate the contract upon thirty days’ notice). Here, the “without cause” termination clause is indeed mutual, granting WCI for the first time the same power of termination at will that Jones had enjoyed in prior contracts. The decisions above specifically demonstrate the fairness and commercial reasonableness of such a termination clause in a distributorship agreement, because it gives the parties “equal rights” to terminate their relationship. Furthermore, even in light of the circumstances alleged by Jones, the fact that the “without cause” termination clause might have adversely affected Jones more than WCI does not establish that the clause unreasonably favored WCI. Compare Oreman Sales, 768 F.Supp. at 1182 (“[Ajffording the same rights of termination to either side, the clause does not favor either side; while the termination here may have adversely affected Oreman more than Panasonic, it does not follow — especially when viewed from the time the agreement was made — that the clause itself thus favors Panasonic”; emphasis in the original, quotation marks and citations omitted). In the circumstances in which Jones alleges it feared termination by WCI, it enjoyed the right under the mutual “without cause” termination provision to seek a relationship with another manufacturer. This court agrees with the district court in Oreman, that “As the numerous cases ... upholding substantively identical termination clauses show, the clause is not so one-sided as to be unreasonable. In sum, no jury could find the clause unconscionable.” Id. Because the court finds no showing can be made as to the substantive unconscionability of the contract clause providing that either party could terminate the distributorship agreement without cause upon sixty days notice, and some showing on this prong is required, Collins, 621 N.E.2d at 1299, the court need not consider whether Jones can make an adequate showing of procedural un-eonscionability. Nor need the court grant Jones an evidentiary hearing prior to granting summary judgment in favor of WCI on the unconscionability claim, because the court cannot find that the prerequisite for such a hearing — the trial court’s acceptance of a possibility of unconscionability — has been shown. Central Ohio Co-operative Milk Producers, Inc., 281-N.E.2d at 44; see also Communications Maintenance, Inc., 761 F.2d at 1210 (where the court found no genuine issue of material fact of substantive unconscionability, it never reached the question of procedural unconscionability, but upheld the district court’s summary judgment dismissing the unconscionability claim); Blalock Machinery & Equip. Co., Inc., 576 F.Supp. at 778 (unconscionability is a question of law that may properly be decided on summary judgment). As in Walker, where the Fifth Circuit Court of Appeals found that the plaintiff distributor’s claim of unconscio-nability of the at-will termination of his distributorship was premised on bad faith or fraudulent conduct prior to the contractual relationship at issue, the court deems that the proper claim for Jones to assert WCI’s alleged misconduct is not an unconseionability claim, but instead may be a misrepresentation or breach of fiduciary duty claim, ie., a claim of breach of duty to disclose. Walker, 734 F.2d at 1075-76. Such tort claims are considered below. 2. Breach of contract The elements of a breach of contract claim under Ohio law are as follows: (1) the existence of a contract; (2) performance by the plaintiff; (3) breach by the defendant; and (4) damage or loss to the plaintiff. Doner v. Snapp, 98 Ohio App.3d 597, 649 N.E.2d 42, 44 (1994); American Sales, Inc. v. Boffo, 71 Ohio App.3d 168, 593 N.E.2d 316, 321 (1991). The court finds that each of Jones’s “breach of contract” claims fails on Jones’s inability to generate a genuine issue of material fact as to the first of these elements. Jones’s first claim of “breach of contract,” alleging breach of the 1987 Agreement, fails to the extent that claim is premised on the unconscionability, and hence un-enforceability, of the entire 1993 Agreement. WCI is entitled to summary judgment on that portion of Jones’s breach of contract claim, because the 1993 Agreement has not been voided as unconscionable, and by its terms, the 1993 Agreement superseded the 1987 Agreement. 1993 Agreement, p. 8, § VI. Complete Agreement, first paragraph (“This Agreement supersedes and cancels any previous understanding or agreement between the parties relating to the Products covered hereby. It expresses the complete and final understanding of the parties "with respect thereto and may not be changed in any way except by an instrument in writing agreed to and signed by both parties.”). Thus, Jones cannot generate a genuine issue of material fact as to the continuing existence of the 1987 Agreement. See Doner, 649 N.E.2d at 44 (existence of a contract is one element of a breach of contract claim). However, Jones’s “breach of contract” claim has other permutations that the court must investigate further. Jones’s “breach of contract” cause of action also asserts that the 1993 Agreement, which pertains specifically to distribution of goods in South Dakota, did not terminate those portions of the 1987 Agreement concerning distribution of goods in Iowa and Nebraska. Consequently, Jones argues, the termination provisions applicable to the Iowa and Nebraska portions of the 1987 Agreement have been breached by WCI’s termination of Jones’s distributorship. However, the 1993 Agreement provides that it supersedes all previous agreements as to the “products” in question. 1993 Agreement, p. 8, § VI. Complete Agreement, first paragraph (“This Agreement supersedes and cancels any previous understanding or agreement between the parties relating to the Products covered hereby_”). Thus, as a matter of law, the 1993 Agreement superseded the 1987 Agreement in its entirety, whatever the differences in territories identified in the contracts might be, because the 1993 Agreement concerned the same “products” as the 1987 Agreement, and additional ones as well. Therefore, once again, Jones cannot assert a claim of breach of the terms of the 1987 Agreement, because the terms of the 1987 Agreement relied upon were no longer in force. See Doner, 649 N.E.2d at 44 (existence of a contract is one element of a breach of contract claim). Furthermore, a dispute of fact over whether or not a WCI representative informed Stewart Hartman of Jones that Jones could still distribute in its old territory, even though Jones’s territory was limited to South Dakota by the terms of the 1993 Agreement, does not generate a genuine issue of material fact that precludes summary judgment on Jones’s breach of contra