Order
In this breach of contract ease, plaintiff claims that defendant breached an agreement to sell the stock of a Ford-Mercury dealership it owned. Because the parties are diverse and the amount in controversy exceeds $75,000, this Court has jurisdiction pursuant to 28 U.S.C. § 1332. Pending are plaintiffs motion for partial summary judgment (Doc. 18) and defendant’s ■ motion for summary judgment (Doc. 19). 1 For the following rеasons, plaintiffs motion shall be denied and defendant’s motion shall be granted.
Background
In April and May, 1995, plaintiff and defendant entered negotiations for the purchase by plaintiff of defendant’s stock in a Ford-Mercury dealership in Clyde, Ohio, Western Ford-Mercury, Inc. (Western). On June 9, 1995, plaintiff submitted a written offer to defendant to purchase the stock of Western. The second paragraph of that offer stated:
Purchaser in submitting this offer is completely cognizant of the fact that despite any participation, involvement or assistance which may have been provided by representatives of Ford in connection with its preparation, Ford shall have no obligation to Purchaser if the offer shall be declined and that only an officer of Ford has the authority to execute the proposed agreement on behalf of Ford.
(Doc. 18, ex. A at ex. 2). The offer also provided that it would expire if not accepted by Ford by June 23, 1995, the original closing date. (Id. at ¶ 8).
The proposed offer was never signed or executed by an officer of defendant. Keith Kenner, defendant’s representative in the negotiations, however, initialed the first page of the offer. Plaintiff also claims that Kenner told him that his signature would be sufficient to bind Ford to the contract. (PL Aff. at ¶ 3).
During the next few weeks, both plaintiff and defendant undertook certain steps in preparation for the June 23 closing. Defendant, among other things, ordered an environmental assessment and completed environmental remediation, began to assess Western’s closing net worth, and obtained insurance on рlaintiffs behalf. Plaintiff, for his part, deposited $25,000 with defendant and began to manage the dealership. 2
The June 23 closing date was rescheduled for early September, 1995, at the agreement of the parties, due to the discovery of environmental problems on the dealership’s property. In late August, 1995, defendant learned that, because of a ruling from the Ohio Motor Vehicle Dealers Board, 3 it would not be able to issue a new franchise agreement to plaintiff for the Western dealership. The September closing therefore did not occur.
Plaintiff and defendant continued to discuss options for transfer of the Western stock. Defendant submitted two proposals to plaintiff, offering to execute a Hired General Manager Agreement with plaintiff on behalf of Westеrn whereby plaintiff would receive a salary and a bonus equivalent to the net profits of the Western dealership until defendant was able to issue an unencumbered franchise to plaintiff. (Doc. 20, exs. I and J). Because defendant anticipated that it would not be able to execute the franchise agreement until March, 1996, however, the proposals were unsatisfactory to plaintiff. (PL Dep. at 72-73). Instead, plaintiff told defendant’s representative that he would wait until December 31, 1995, to consummate the sale of the Western stock. (Id.). The sale never occurred, and plaintiff resigned from managing the Western dealership in January, 1996. (Id. 208-210).
Plaintiff filed this suit on January 22,1997. His complaint asserts four separate causes of action: breach of contract, unjust enrichment, equitable and promissory estoppel, and fraud. Defendant moves for summary judgment on all claims; plaintiff moves for summary judgment on its breach of contract claim only.
Discussion
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 ease, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett,
A. Breach of Contract
Plаintiff asks me to find, as a matter of law, that his written offer to defendant dated June 9, 1995, coupled with the statements of Kenner, defendant’s representative, and defendant’s actions in preparation for closing the sale of stock, constituted a valid, binding agreement between the parties, and that defendant’s failure to close the transaction was a breach of that agreemеnt. Defendant, on the other hand, argues that the June 9 writing was nothing more than a written offer, and, as it was never signed by an officer of defendant, never matured into a binding contract. In light of basic principles of contract law, I agree with defendant that no breach of contract claim can be maintained in this case.
A contract may be effective even though the written instrument evidenсing its terms has not been executed. Ohio Jur.3d § 82 (1980). Indeed, “[signature spaces in the form contract do not in and of themselves require that signatures of the parties are a condition precedent to the agreement’s enforceability.”
Richard A. Berjian, D.O., Inc. v. Ohio Bell Tel. Co.,
Other courts are in accord.
See, e.g., Neff v. World Pub. Co.,
The June 9 offer unambiguously stated that plaintiff was aware that no one but an officer of defendant had the authority to bind defendant. Therefore, the pаrties clearly contemplated that the signature of a Ford officer was a prerequisite to the formation of a valid contract between them.
Plaintiff argues, however, that statements made and actions taken by defendant’s agents effectively waived the requirement that an officer execute the agreement. He first argues that Kenner’s initialing of the offer and his assurance that this was sufficient to bind defendant created a valid contract between the parties, despite the lack of approval by a Ford officer. In light of the offer’s unambiguous requirement that it be accepted by a Ford officer and its signature line requiring the signature of Ford’s Assistant Secretary, however, Kenner’s actions are insufficient to create an issue of fact as to whethеr the contract was binding.
Cf. Bailey v. Midwestern Enter., Inc.,
Plaintiff also asserts that Ford’s actions in investigating environmental issues, assessing Western’s net worth, etc., demonstrated its approval of the contract and its willingness to waive the requirement that an officer execute the offer before formation of a binding contract. Where the signature of one of the parties is a condition precedent to a binding contract, that condition may be waived by performance under the contract, as such performance indicates that the contract has been accepted.
See Dearborn Industrial Mfg. Co., Ltd. v. Soudronic Finanz AG,
Here, defendant did not begin performance under the alleged contract: the actions it took were preparatory measures that needed to be done before the anticipated closing dаte, and did not evidence an intent to be bound before that date. Even viewed most favorably to plaintiff, defendant’s preparatory acts cannot be said to have constituted a waiver of the protection afforded it in the offer, as they were completely consistent with an intent to delay formation of a binding contract until execution of the offer by an officer. 4
Bеcause none of the statements made or actions taken by Ford’s employees can reasonably be viewed as indicating that defen
B.Unjust Enrichment
In Count II of his complaint, plaintiff claims that defendant was unjustly enriched by plaintiffs profitable management of the Western dealership between June, 1995, and January, 1996.
An unjust enrichment claim is cognizable where one confers benefit on another, in reliance on the existence of a promise to pay, without receiving just compensation for those services.
Weiper v. W.A. Hill & Assoc.,
Plaintiff does not dispute that he was paid a salary and given all the profits of the Western dealership while he managed it. In response to defendant’s motion for summary judgment, he argues only that defendant was unjustly benefitted because the dealership’s value increased during the time that plaintiff managed it, and defendant was able to recoup some of that increased value when it transferred some of the Western dealership’s inventory, parts, and service records to a new Ford dealership in Fremont, Ohio. He does not, however, explain or substantiate his contention that this transfer resulted in an unfair benefit to Ford.
Because plaintiff has not set forth any specific evidence to support his unjust enrichment claim, as is his burden оn a motion for summary judgment, defendant’s motion as to this claim shall be granted.
C.Promissory Estoppel
Plaintiffs third claim is based on the equitable doctrine of promissory estoppel. Under this doctrine-, one party is estopped from denying that a contract exists where that party has induced the reasonable reliance of another through unkept promises. Under Ohio law, “[a] promise which the promisor should rеasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”
The Limited Stores, Inc. v. Pan Am. World Airways,
Plaintiff argues that defendant is es-topped from denying the existence of a contract between them because hе “relied upon the terms of the Purchase Agreement 5 and upon express representations by representatives of defendant that he would become the owner of the Dealership pursuant to the terms of the Purchase Agreement.” (Doc. 26 at 21). In light of my finding that no valid contract was formed between the parties, plaintiffs argument is misplaced: the explicit terms of the offer (what рlaintiff refers to as the “Purchase Agreement”) contradict plaintiffs claim that he specifically relied on it in assuming that there was a contract between the parties despite the lack of an officer’s signature. Additionally, the employees’ representations that plaintiff would become the owner of the dealership under the terms of the offer cannot reasonаbly be interpreted as promises that defendant was bound by the contract. Thus, plaintiff fails to specify any promises on which he based his belief that the contract was valid and binding on defendant.
Most fundamentally, it is difficult to understand how plaintiff can claim that he was reasonably induced to believe that there was a valid contract between the parties in the face of the cleаr, unambiguous written provision to the contrary. Defendant’s motion for summary judgment on this claim shall therefore be granted.
D.Fraud
Count IV of plaintiffs complaint alleges that defendant made false statements
To prevail on a claim of fraud, a plaintiff must demonstrate (a) a representation or, where there is a duty to disclose, concealment of a fact, (b) that is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance.
Burr v. Bd. of Cty. Commrs. of Stark Cty.,
Plaintiffs fraud claim cannot stand. He has presented no evidence that defendant knew that the Lloyd matter would become problematic, intentionally misled him by not informing him of the dispute, or caused him injury. Indeed, his fraud claim is simply not сredible in light of the undisputed evidence that defendant believed the Lloyd dispute would be no impediment to the agreement with plaintiff, was shocked by the Hearing Officer’s ruling, sought in good faith to renegotiate with plaintiff, and remained ready and willing to complete the stock sale once the problems with Lloyd were resolved. Defendant’s actions are not those of a company sеeking intentionally to mislead, but rather those of a company truly shocked by a contingency it did not foresee. As such, summary judgment is appropriate on the fraud claim.
Conclusion
For the foregoing reasons, it is hereby
ORDERED THAT
(1) plaintiffs motion for partial summary judgment (Doc. 18) be, and same hereby is, denied; and
(2) defendant’s motion for summary judgment (Doc. 19) be, and same hereby is, granted; and
(3)defendant’s motion for oral argument (Doc. 32) be, and same hereby is, denied.
So ordered.
Notes
. Defendant has also filed a motion for oral argument concerning the cross motions. (Doc. 32). Because I do not believe an oral hearing is necessary, and have instead decided the motions on the briefs, this motion shall be denied.
. Plaintiff managed the Western dealership under two Hired General Manager Contracts between June, 1995, and January, 1996, even though the sale of stock was never consummated.
. My ruling that there was no binding contract between the parties makes it unnecessary to explain the somewhat complex factual scenario underlying the adverse ruling defendant received from the Board’s Hearing Examiner. It is sufficient to note that defendant, during its negotiations with plaintiff, was involved in a dispute with a prior manager of Western, Phil Lloyd. That dispute originally resulted in defendant's practical inability to transfer an unencumbered franchise to plaintiff. After an appeal of the Hearing Examiner's decision, however, the dispute and the status of the franchise were resolved.
. Plaintiff argues also that, on two separate occasions, defendant’s agents conceded that the parties had a valid, binding contract for sale of Western’s stoсk. This argument is misplaced for two reasons. First, the statements do not evidence defendant's intent to waive the offer’s requirement of officer approval, as they occurred months after plaintiff resigned and abandoned negotiations with defendant. Second, the post hoc belief of defendant's agents that a contract had existed between the parties does not makе it so: the clear wording of the offer, the failure of an officer to execute the offer, and the lack of evidence to support the contention that the condition was waived compel a finding that no binding agreement existed between the parties.
. Plaintiff has uniformly referred to his June 9, 1995, offer as the "Purchase Agreement." My holding that the offer never ripened into a valid contract makes this characterization incorrect.