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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Joseph J. Bruzzese, Jr. and Lisa A. Bruzzese, : Case No. 2:12-cv-167

Plaintiffs, : Judge Graham

v.

:

Chesapeake Exploration, LLC,

:

Defendant.

____________________________________

Chesapeake Exploration, LLC, :

Counter-Plaintiff, :

v.

:

Joseph J. Bruzzese, Jr., et al.,

:

Counter-Defendants.

Opinion and Order

This case concerns the enforceability of an agreement signed by landowners to accept a lease 

offer from Chesapeake Exploration, LLC. Landowners Stephen and Elizabeth Albery signed an 

Agreement to Accept Lease Offer from Chesapeake on July 16, 2011. Under this Agreement, the 

Alberys and Chesapeake agreed to execute a 5-year lease for the gas and oil rights to 160 acres of 

property owned by the Alberys in Tuscarawas County, Ohio, with the Alberys receiving a one-time 

payment of $2700 per acre plus royalty payments of 17.5%. Chesapeake promised to enter into a 

lease with such payment terms so long as the property had marketable title and was not 

“undevelopable.” After signing the Agreement, the Alberys soon learned of a better offer being 

made by a different energy company and told their attorney on July 24, 2011 that they wanted to 

terminate the Agreement.

The matter is before the court on cross-motions for summary judgment solely on the issue 

of the enforceability of the Agreement to Accept Lease Offer. As explained below, the court finds 

in Chesapeake’s favor that the Agreement is enforceable.

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I. Background

This suit was originally filed by landowners Joseph J. Bruzzese, Jr. and Lisa A. Bruzzese in 

the Court of Common Pleas of Jefferson County, Ohio. The Bruzzeses had signed the Agreement 

to Accept Lease Offer, and the complaint sought declaratory judgment against Chesapeake that the 

Agreement was not enforceable. Chesapeake removed the action to this court on the basis of 

diversity jurisdiction. Chesapeake then answered and filed counterclaims for breach of contract,

specific performance and declaratory judgment against the Bruzzeses and approximately 75 other 

landowners in Eastern Ohio who had signed the Agreement. During the course of this litigation, 

Chesapeake has reached a settlement with all of the landowners except the Alberys. The Alberys 

have filed counterclaims against Chesapeake for declaratory judgment, quiet title, and slander of title.

On December 20, 2010, the Alberys signed an Agreement to Join the F&M Ohio Valley 

Landowners Group No. 1.

1

 See Doc. #146-17. Two law firms – Fisher, Brown, Peterson & Noble, 

and Morscyzk & Polochak – organized and represented the landowners group. Under the 

Agreement to Join, landowners agreed to retain the two firms as legal counsel for the purpose of 

negotiating gas and oil leases. The Agreement to Join provided that if a group member ultimately 

signed a lease negotiated by counsel, then counsel would receive a certain rate of compensation; 

however, group members were not obligated to enter into a lease and could opt out of the group at 

any time.

Counsel for the landowners group held periodic meetings with current and prospective 

group members at a local high school. See Dep. of Jeffrey Brown, at 16. Mr. Albery attended such 

a meeting in January or February 2011. See Albery Dep. at 19. He attended another meeting a 

month or two later. Id. These meetings were attended by 80 to 100 people, and the discussions

concerned which energy companies had shown interest in leasing land, prices per acre, royalty 

percentages, protecting timber and water interests in the land, the length of leases and the timetable 

for getting lease deals done. Id. at 19-20, 24-26. A couple more meetings followed in which 

landowners were updated as to the prices and percentages being offered by interested energy 

companies. Id. at 34-35, 38.

 1 In his deposition, Mr. Albery initially acknowledged that he and his wife signed the Agreement to 

Join on December 20, 2010. See Dep. of Stephen Albery at 29-30. He later testified that he 

believed the December 20, 2010 signatures belonged to some other document and not to the 

Agreement to Join. Id. at 45-46. In any event, Mr. Albery acknowledged that he eventually did sign 

the Agreement to Join, and the exhibit submitted by the Alberys’ own counsel in this action as a 

correct copy of the Agreement to Join is the one with the December 20, 2010 signatures. See Doc. 

#146-17. 

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On April 4, 2011, the Alberys signed the Ohio Valley Landowners (“OVL”) Commitment 

Agreement. See Doc. #142-2 at Page 44 of 120. Under the OVL Agreement, the landowner 

formally committed acreage to the group leasing project, with Fisher, Brown, Peterson & Noble, and 

Morscyzk & Polochak retained as legal counsel for the project. The landowner agreed to grant 

exclusive authority to counsel to coordinate and accept price bids for gas and oil leases. As a fee, 

counsel was to receive 6% of the bonus payments made to landowners for successfully-negotiated 

leases.

By late spring 2011 counsel for the landowners group determined that Chesapeake had made 

a suitable offer that counsel could recommend for approval to members of the group. Chesapeake 

and counsel for the group executed a letter of intent on June 6, 2011. See Doc. #148-1. Attached 

to the letter of intent were a sample Agreement to Accept Lease Offer from Chesapeake and a 

sample Paid-Up Oil & Gas Lease. Id. Mr. Albery recalls attending a meeting in which sample 

copies of the Agreement to Accept Lease Offer and the Paid-Up Oil & Gas Lease were made 

available for group members to inspect. See Albery Dep. at 83-86; see also Brown Dep. at 105-06, 

113.

A signing event was held at the local high school in mid-June 2011. See Brown Dep. at 36-

37. The Agreement to Accept Lease Offer provided that Chesapeake reserved the right to withdraw 

its offer if landowners did not execute and deliver the Agreement to counsel by June 17, 2011. The 

Alberys were on vacation and did not attend the event. See Albery Dep. at 52. After returning from 

vacation on about July 9, 2011, the Alberys called counsel for instructions on how to retrieve leaserelated documents from a website. Id. at 52, 54.

On July 16, 2011, the Alberys printed out and signed both the Agreement to Join the F&M 

Ohio Valley Landowners Group No. 1 and the Agreement to Accept Lease Offer. See Doc. #142-2 

at Page 42 of 120; Doc. #146-18. On the Agreement to Accept Lease Offer, the Alberys filled in 

the parcel numbers for the land (totaling 160 acres) that was to be leased. Where the Agreement 

stated that there would be a one-time bonus payment of $2400 per acre, the Alberys crossed out that 

amount and wrote in $2700 because they had been informed that counsel had negotiated the higher 

amount with Chesapeake while the Alberys were on vacation. See Albery Dep. at 52, 54-55. The 

Alberys then emailed to counsel the signed Agreement to Accept Lease Offer.

Immediately after the Alberys had submitted the signed Agreement, Mrs. Albery’s sister told 

them that she had heard that other energy companies were making better offers to landowners. See

Albery Dep. at 59. Under the apparent understanding that they could back out of the Agreement 

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because they believed they could still opt out of the landowners group, see id. at 53, 59-60, 76, the 

Alberys sent a letter to counsel on July 24, 2011 stating that they wished to terminate the Agreement 

to Join the F&M Ohio Valley Landowners Group No. 1 and the Agreement to Accept Lease Offer. 

See Doc. #146-19.

Chesapeake had prepared a Paid-Up Oil and Gas Lease with accompanying forms for the 

Alberys to sign. See Doc. #146-25. The Lease and forms were dated July 25, 2011. See, e.g., Doc. 

#146-25 at Page 15 of 32. The Alberys did not receive a copy of the forms that Chesapeake

prepared for them to sign. See Albery Dep. at 87.

The Alberys then joined a different landowners group and on October 19, 2011 signed an oil 

and gas lease with the Shell Exploration & Production Company. See Albery Dep. at 61. On 

February 28, 2012, Shell informed the Alberys by letter that it had discovered during its title review 

that the Alberys had entered into the Agreement to Accept Lease Offer with Chesapeake. See Doc. 

# 146-20. Shell thus terminated the October 19, 2011 oil and gas lease.

II. Standard of Review

Under Federal Rule of Civil Procedure 56, summary judgment is proper if the evidentiary 

materials in the record show 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); see Longaberger Co. v. Kolt, 586 

F.3d 459, 465 (6th Cir. 2009). The moving party bears the burden of proving the absence of 

genuine issues of material fact and its entitlement to judgment as a matter of law, which may be 

accomplished by demonstrating that the nonmoving party lacks evidence to support an essential 

element of its case on which it would bear the burden of proof at trial. See Celotex Corp. v. Catrett, 

477 U.S. 317, 322-23 (1986); Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005).

The “mere existence of some alleged factual dispute between the parties will not defeat an 

otherwise properly supported motion for summary judgment; the requirement is that there be no 

genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) 

(emphasis in original); see also Longaberger, 586 F.3d at 465. “Only disputed material facts, those 

‘that might affect the outcome of the suit under the governing law,’ will preclude summary 

judgment.” Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008) (quoting Anderson, 

477 U.S. at 248). Accordingly, the nonmoving party must present “significant probative evidence” 

to demonstrate that “there is [more than] some metaphysical doubt as to the material facts.” Moore 

v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993). 

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A district court considering a motion for summary judgment may not weigh evidence or 

make credibility determinations. Daugherty, 544 F.3d at 702; Adams v. Metiva, 31 F.3d 375, 379 

(6th Cir. 1994). Rather, in reviewing a motion for summary judgment, a 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. 

The evidence, all facts, and any inferences that may permissibly be drawn from the facts must be 

viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 

451, 456 (1992). However, “[t]he mere existence of a scintilla of evidence in support of the 

plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably 

find for the plaintiff.” Anderson, 477 U.S. at 252; see Dominguez v. Corr. Med. Servs., 555 F.3d 

543, 549 (6th Cir. 2009).

III. Discussion

A. The Language of the Agreement

The Agreement to Accept Lease Offer from Chesapeake that the Alberys signed provided in 

pertinent part:

The members of The F&M Ohio Valley Landowners Group No. 1 (“the Group”), 

have been offered a Paid-Up Oil and Gas Lease (“Lease”) and Order of Payment by 

Chesapeake Exploration, L.L.C (“Chesapeake”). The offer from Chesapeake is as 

follows:

1) A one-time bonus payment of $2700.00 per net acre of each net acre for which 

title is confirmed satisfactorily to Chesapeake in its sole discretion for a Lease 

with primary term of five (5) years, with option to extend an additional three (3) 

years under the same terms and conditions.

2) A royalty to the Landowner of 17.50%, as defined in the Lease.

3) Chesapeake has agreed to lease all parcels in the group . . . that have marketable 

title and clear due diligence being acceptable to Chesapeake in Chesapeake’s sole 

discretion pursuant to the terms of the Order of Payment; however, Chesapeake 

may decline accepting “undevelopable” acreage that is not contiguous to other 

Group acreage or Chesapeake acreage and is less than 1 acre in size. . . .

By signing below . . . [the Landowners agree] to execute an Oil and Gas Lease (the 

“Lease”) the form of which has been provided to the Group and its member 

Landowners . . . . The Landowner(s) also agree to execute any associated paperwork 

or forms necessary to complete the transaction including the Order of Payment 

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form, W-9 forms, and Memorandum of Oil and Gas Lease form. The Landowner(s) 

agree that [counsel] will assist Chesapeake in preparing leases and the associated 

forms for execution by the Landowner(s) after Landowner(s) execution of this 

Agreement. Landowner(s) agree that by signing below and accepting Chesapeake’s 

offer that Chesapeake may make direct payment to [counsel] for services rendered in 

regard to this transaction, pursuant to the agreement to Join F&M Landowners 

Group No. 1. . . .

Chesapeake hereby withdraws all prior offers . . . and the offer made herein by 

Chesapeake is subject to withdrawal if not formally executed and delivered to 

[counsel] by you on or before 5:00 p.m. (EST), June 17, 2011.

. . . 

Subject to the terms of this Agreement, Landowner agrees not to enter into any 

other oil and gas lease, letter of intent, agreement, negotiations to lease, or sell the oil 

and gas rights to any other person or company and to lease only to Chesapeake . . . .

Doc. #146-18. The Alberys filled out blank lines on the Agreement in which they stated the 

approximate number of acres to be leased, the county and township in which their land was located, 

and the parcel numbers of the land.

B. Elements of Contract Formation

Both sides to this dispute seek summary judgment on the issue of whether the Agreement to 

Accept Lease Offer signed by the Alberys on July 16, 2011 is an enforceable contract. The essential 

elements of contract formation are an offer, acceptance, contractual capacity, consideration, 

manifestation of mutual assent, and legality of object and of consideration. Kostelnik v. Helper, 96 

Ohio St.3d 1, 3, 770 N.E.2d 58, 61 (2002). Here, the Agreement to Accept Lease Offer required

that the parties enter into a further agreement, namely, the lease. The Ohio Supreme Court has 

expressly held that preliminary agreements are valid if the elements of contract formation are 

satisfied: “Ohio has long recognized the general validity of preliminary agreements to lease.” 

Normandy Place Assoc. v. Beyer, 2 Ohio St.3d 102, 105, 443 N.E.2d 161, 164 (1982) (citing cases). 

“It is thus not the law that an agreement to make an agreement is per se unenforceable. The 

enforceability of such an agreement depends rather on whether the parties have manifested an 

intention to be bound by its terms and whether these intentions are sufficiently definite to be 

specifically enforced. Id., 2 Ohio St.3d at 105-06, 443 N.E.2d at 164 (citing Restatement of 

Contracts 2d § 26; 1 Corbin on Contracts § 30).

The Alberys argue that the following elements of contract formation are not present here: 

offer, consideration, and manifestation of mutual assent.

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1. An Offer

“An offer is defined as ‘the manifestation of willingness to enter into a bargain, so made as 

to justify another person in understanding that his assent to that bargain is invited and will conclude 

it.’” Reedy v. The Cincinnati Bengals, Inc., 143 Ohio App.3d 516, 521, 758 N.E.2d 678, 682 (Ohio 

Ct. App. 2001) (quoting Restatement of Contracts 2d § 24). The Alberys first argue that the 

Agreement stated no offer at all, but rather a vague proposition that Chesapeake would make a 

future offer, which would be memorialized in a lease agreement. This argument, however, is 

contradicted by the plain language of the Agreement. The opening paragraph of the Agreement

stated in the present tense that the “offer from Chesapeake is as follows.” Agreement at ¶ 1 

(emphasis added). The Agreement then enumerated the material aspects of the offer: price per acre, 

duration, royalty percentage, and marketable title. Id. The Agreement then stated that by signing 

the Agreement the landowners were “accepting Chesapeake’s offer.” Id. at ¶ 2 (emphasis added). 

The next paragraph characterized Chesapeake’s offer as “the offer made herein.” Id. at ¶ 3. It is 

true that the Agreement contemplated that the parties would later execute a lease, but that does not 

mean that Chesapeake failed to make an offer. The Agreement expressly identified the offer being 

made by Chesapeake – indeed the title of the Agreement was “Agreement to Accept Lease Offer 

from Chesapeake” – and executing the lease was the performance required by the Agreement. See

Agreement at ¶ 2 (“By signing below . . . [the Landowners agree] to execute an Oil and Gas Lease . .

. .”).

The Alberys next argue that the terms of Chesapeake’s offer were too indefinite to give rise 

to a binding contract. “[T]he essential terms of the contract, usually contained in the offer, must be 

definite and certain.” Reedy, 143 Ohio App.3d at 521, 758 N.E.2d at 682. The Alberys focus on the 

terms “marketable title,” “due diligence” and “undevelopable” in arguing that each of these terms

had too uncertain of a meaning to manifest a willingness by Chesapeake to enter into a bargain.

The court, however, finds that the contract terms were definite and certain. The Agreement 

stated that Chesapeake would determine marketable title “pursuant to the terms of the Order of 

Payment.” Agreement at ¶ 1.3. The Order of Payment in turn provided that a “title defect is a basis 

to render title unacceptable and shall include, but shall not be limited to, a prior unsubordinated 

mortgage, unreleased lease or delinquent property taxes.” Doc. #146-25 at Page 28 of 32. 

Moreover, contract terms “‘may be given precision by usage or trade or by course of dealing 

between the parties.’” Nilavar v. Osborn, 137 Ohio App.3d 469, 487, 738 N.E.2d 1271, 1284 (Ohio 

Ct. App. 2000) (quoting Restatement of Contracts 2d § 33, cmt. f). It is well-accepted that 

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“marketable title” means that “the title to the property is not subject to a claim that could result in 

the property holder being dispossessed.” Carr v. Acacia Country Club Co., __ Ohio App.3d __, 970 

N.E.2d 1075, 1089 (Ohio Ct. App. 2012). “Due diligence” in the context of real estate transactions 

refers to the obligation that every purchaser of real property in Ohio has to “examine the chain of 

title to discover the existence of adverse claims or encumbrances.” Columbia Gas Transmission 

Corp. v. Bennett, 71 Ohio App.3d 307, 315, 594 N.E.2d 1, 6 (Ohio Ct. App. 1990). And 

“undevelopable” acreage (which the Agreement further restricted to parcels less than 1 acre and not 

contiguous to any other group acreage or Chesapeake acreage) means not fit or suitable for realizing

oil or gas value from the property. See, e.g., Oxford English Dictionary (defining the verb 

“develop” as to “realize the potentialities of’” or to “make suitable” for the intended purpose); 17 

Williston on Contracts § 50:63 (4th Ed.) (“An implied covenant to explore and reasonably develop 

the leased premises is part of an oil and gas lease unless the lease provides otherwise.”).

The Alberys’ next argument is that no offer was made because two of the terms were 

uncertain and subject to change. The Alberys note that the price per acre of the bonus payment 

increased from $2400 to $2700 and that they submitted the Agreement after what they call the June 

17, 2011 “deadline.” The court again disagrees. That Chesapeake agreed to an increase in the price 

per acre does not make the Agreement uncertain or unenforceable. It means that the Alberys 

successfully made a counter offer that Chesapeake accepted. See Brown Dep. at 120 (attorney for 

landowners group stating that they negotiated with Chesapeake to increase the amount to $2700 per 

acre upon hearing that Chesapeake was offering another landowners group $2700). And the 

“deadline” was not a date after which the parties could not contract. Rather, June 17, 2011 was 

simply the date to which Chesapeake promised it would hold its offer open. Chesapeake opted, as it 

had the ability to do, to extend the offer beyond that date. See Agreement ¶ 3.

Accordingly, the court finds that Chesapeake made a valid offer in the Agreement.

2. Consideration

Consideration is a bargained-for legal benefit or detriment. See Kostelnik, 96 Ohio St.3d at 

3, 770 N.E.2d at 61. “Consideration may consist of either a detriment to the promisee or a benefit 

to the promisor. . . . A benefit may consist of some right, interest, or profit accruing to the 

promisor, while a detriment may consist of some forbearance, loss, or responsibility given, suffered, 

or undertaken by the promisee.” Williams v. Ormsby, 131 Ohio St.3d 427, 431, 966 N.E.2d 255, 

259 (2012).

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The Alberys argue that Chesapeake provided no consideration because it was not obliged to 

pay the bonus payment until the lease was executed. However, consideration need not come in the 

form of monetary payment. In the Agreement, Chesapeake promised to take on the responsibility 

of preparing and executing the lease. The consideration provided by Chesapeake was not a promise 

to pay the bonus, but a promise to execute a lease with the bonus payment as one of its terms. 

Chesapeake thus took on an obligation (to prepare and execute the lease) that it was not otherwise 

obligated to take on. See 3 Williston on Contracts § 7:4 (“[I]t is a sufficient legal detriment to the 

promisee if it promises or performs any act, regardless of how slight or inconvenient, which it is not 

obligated to promise or perform so long as it does so at the request of the promisor and in exchange 

for the promise. . . . [Detriment] means giving up something which the promisee was theretofore 

privileged to retain, or doing or refraining from doing something which the promisee was then 

privileged not to do, or not to refrain from doing.”).

The Alberys next argue that Chesapeake’s promise to perform was illusory because the 

Agreement gave Chesapeake unfettered discretion to decide whether to enter into the lease. The 

Agreement stated that Chesapeake would determine in its “sole discretion” whether a parcel had 

marketable title “being acceptable to Chesapeake” and would also determine whether acreage was 

undevelopable. The Alberys argue that this discretion gave Chesapeake an unlimited ability to walk 

away from the deal.

The court finds that Chesapeake’s promise to perform was not illusory. “[A] contract is 

illusory only when by its terms the promisor retains an unlimited right to determine the nature or 

extent of his performance; the unlimited right, in effect, destroys his promise and thus makes it 

merely illusory.” Domestic Linen Supply & Laundry Co. v. Kenwood Dealer Group, Inc., 109 Ohio 

App.3d 312, 316, 672 N.E.2d 184, 186 (Ohio Ct. App. 1996) (internal quotation marks omitted); see

also 3 Williston on Contracts § 7:7 (“[W]here the promisor may perform or not, solely on the 

condition of his whim, his promise will not serve as consideration.”). The Agreement did not leave 

to Chesapeake’s whim the decision of whether it would enter into a lease. Instead, the Agreement 

provided standards by which Chesapeake was to determine whether land was acceptable for leasing 

– that it had marketable title, cleared due diligence, and was not undevelopable. As discussed above, 

these standards are capable of being defined and applied. To the extent that the “sole discretion” 

language may suggest otherwise, Ohio law imposes an implied duty on parties to a contract to act in 

good faith in its performance. See Illinois Controls, Inc. v. Langham, 70 Ohio St.3d 512, 520, 639 

N.E.2d 771, 778 (1994) (holding that exclusive marketing rights contract was not illusory, even 

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though it did not set forth the marketing obligation, because there was an implied good-faith 

promise to use reasonable efforts to promote the product – “The promise to perform such an 

undertaking is neither illusory nor indefinite.”); Restatement of Contracts 2d § 205; Lowe’s Home 

Centers, Inc. v. LL & 127, LLC, 147 Fed. App’x 516, 523-24 (6th Cir. 2005) (noting under Michigan 

law that “where the manner of performance under a contract is left to the discretion of a party, that 

party may breach the contract by exercising its discretion in bad faith”). Thus, were it the case that 

Chesapeake declined to lease land based on a determination made in bad faith as to marketable title, 

the landowner would have a cause of action against Chesapeake for breach of the Agreement.

Finally, the Alberys argue that Chesapeake did not provide consideration because 

Chesapeake failed to give them the lease and accompanying forms. This argument fails for two 

reasons. First, it mistakes consideration with performance. The consideration was Chesapeake’s 

promise to prepare the lease and forms; the performance was Chesapeake’s acts of preparing and 

delivering them to the Alberys. Second, this argument mischaracterizes the factual record. 

Chesapeake did prepare the lease and accompanying forms for the Alberys to sign on July 25, 2011. 

See Doc. #146-25. It appears that the prepared lease and forms did not get delivered to the Alberys 

because they had notified their attorney on July 24, 2011 that they wished to terminate the 

Agreement. See Doc. #146-19.

Accordingly, the court finds that the Agreement was supported by consideration.

3. Manifestation of Mutual Assent/Meeting of the Minds

In the case of preliminary agreements, as with all contracts, the parties must manifest an 

intention to be bound by its terms in order for the agreement to be enforceable. Normandy Place, 2 

Ohio St.3d at 105-06, 443 N.E.2d at 164. This requirement of mutual assent is also called a meeting 

of the minds. See e.g., Costner Consulting Co. v. U.S. Bancorp, 195 Ohio App.3d 477, 482, 960 

N.E.2d 1005, 1009-10 (Ohio Ct. App. 2011); Restatement of Contracts 2d § 17, cmt. c. “A meeting 

of the minds as to the essential terms of the contract is a requirement to enforcing the contract,” 

Kostelnik, 96 Ohio St.3d at 3-4, 770 N.E.2d at 61, and is “usually demonstrated by an offer and 

acceptance.” Reedy, 143 Ohio App.3d at 521, 758 N.E.2d at 682. “Manifestation of mutual assent 

to an exchange requires that each party either make a promise or begin or render a performance. . . . 

The manifestation of assent may be made wholly or partly by written or spoken words or by other 

acts or by the failure to act.” McSweeney v. Jackson, 117 Ohio App.3d 623, 631, 691 N.E.2d 303, 

308 (Ohio App. Ct. 1996) (quoting Restatement of Contracts 2d §§ 18, 19(1)). “There is no 

manifestation of mutual assent to an exchange if the parties attach materially different meanings to 

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their manifestations and (a) neither party knows or has reason to know the meaning attached by the 

other . . . .” Restatement of Contracts 2d § 20(1)(a).

The Alberys make three arguments in support of their assertion that they did not have a 

meeting of the minds with Chesapeake. They first contend that they understood, based on the

Agreement to Join the landowners’ group and on representations made by counsel for the 

landowners’ group, that the Agreement was not binding and that they could opt out of the deal at 

any point before signing the lease. See Albery Dep. at 56, 60, 76 (testifying that the landowners’ 

attorney told the Alberys that they could get out of the group and out of the Agreement at any time 

before signing the lease). This argument fails because an objective standard applies to the 

determination of whether there was a meeting of the minds. “Ohio law does not require contracting 

parties to share a subjective meeting of the minds to establish a valid contract; otherwise, no matter 

how clearly the parties wrote their contract, one party could escape its requirements simply by 

contending that it did not understand them at the time. What it does require is that the terms of the 

agreement establish an objective meeting of the minds, which is to say that the contract was clear 

and unambiguous.” 216 Jamaica Avenue, LLC v. S & R Playhouse Realty Co., 540 F.3d 433, 440 

(6th Cir. 2008) (citing Nilavar v. Osborn, 127 Ohio App.3d 1, 711 N.E.2d 726, 733 (1998)). See also

Bennett v. Heidinger, 30 Ohio App.3d 267, 268, 507 N.E.2d 1162, 1164 (Ohio Ct. App. 1986) (“The 

relevant inquiry is the manifestation of intent of the parties as seen through the eyes of a reasonable 

observer, rather than the subjective intention of the parties.”). 

The Alberys have not cited any evidence in support of their argument other than their own

subjective understanding. The “mental reservation of a party to a bargain does not impair the 

obligation he purports to undertake.” Restatement of Contracts 2d § 17, cmt. c. It is true that the 

Agreement to Join the landowners’ group contained opt-out language, but Chesapeake was not a 

party to the Agreement to Join and, in any event, the Agreement to Join stated only that the 

landowner could opt out of the group – it did not state that the landowner could opt out of an 

executed Agreement to Accept Lease Offer. The agreement that Chesapeake seeks to enforce here, 

the Agreement to Accept Lease Offer was clear and unambiguous. It contained no language

suggesting that the landowner could opt out of the deal before signing the lease. It plainly stated

that the landowner was agreeing to execute a lease with Chesapeake and agreeing not to take any 

actions inconsistent with the grant of rights to Chesapeake by entering into negotiations or an 

agreement with any other person or energy company.

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The second argument made by the Alberys regarding a meeting of the minds is that they 

were not made aware of an essential term of the lease before signing the Agreement to Accept Lease 

Offer. This argument too is unavailing. An enforceable contract must be specific “as to its essential 

terms, such as the identity of the parties to be bound, the subject matter of the contract, 

consideration, a quantity term, and a price term.” Alligood v. Procter & Gamble Co., 72 Ohio 

App.3d 309, 311, 594 N.E.2d 668, 669 (Ohio Ct. App. 1991); see also Allied Erecting & Dismantling 

Co. v. Uneco Realty Co., 146 Ohio App.3d 136, 142, 765 N.E.2d 420, 425 (Ohio Ct. App. 2001). 

The Agreement contained the identity of the parties, the parcels to be leased for gas and oil rights, 

the consideration (mutual promises to enter into a lease, with Chesapeake agreeing to prepare the 

lease with certain terms and the Alberys agreeing to execute the lease and refrain from negotiating 

with others), the price terms, and the duration of the lease. The Alberys point to a surrender clause

(concerning Chesapeake’s ability to terminate the lease) that appeared in the lease but was absent

from the Agreement. See Doc. # 146-24 at Pages 4 and 5 of 32. They have not explained why the 

surrender clause was an essential term, but even if it were, the evidence demonstrates that the terms 

of the lease were made available to the Alberys before they signed the Agreement. The Alberys 

acknowledge having attended a meeting in which a sample of the lease was made available for 

inspection, see Albery Dep. at 83-86, and counsel for the landowners testified that at the meetings 

he “explained to the crowd what the terms were in the lease and what was going to happen,” see

Brown Dep. at 105. Chesapeake provided the lease with the surrender clause to the Alberys before 

they signed the Agreement. That the Alberys chose not to read the lease and thus held a subjective 

belief that Chesapeake could not terminate the lease does not mean that the parties failed to reach an 

objective meeting of the minds.

The Alberys’ third argument is that Chesapeake did not manifest its assent because it did not 

sign the Agreement. Though parties ordinarily manifest their assent to a written contract by signing 

it, a party may manifest its assent by some other act or conduct. See Restatement of Contracts 2d § 

19(1) (“The manifestation of assent may be made wholly or partly by written or spoken words or by 

other acts or by failure to act.”); Detroit Tigers, Inc. v. Ignite Sports Media, LLC, 203 F.Supp.2d 

789, 796 (E.D. Mich. 2002). A signature is not required unless the parties agree that their written 

agreement be signed. Tocci v. Antioch Univ., __ F.Supp.2d __, 2013 WL 4517838, at *20 (S.D.

Ohio 2013); Detroit Tigers, 203 F.Supp.2d at 796 (“A signature on the contract is not a per se

prerequisite to enforcement. . . . The real question is . . . what was the intention of the parties . . . .”)

(internal quotation marks omitted); Leibowitz v. Cornell Univ., 584 F.3d 487, 507 (2d Cir. 2009), 

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superseded on other grounds (holding that a “signature is not required to demonstrate assent” where the 

party’s conduct objectively demonstrated her assent).

A party’s conduct demonstrates assent when “he intends to engage in the conduct and 

knows or has reason to know that the other party may infer from his conduct that he assents.”

Restatement of Contracts 2d § 19(2); see also Tocci v. Antioch Univ., __ F.Supp.2d __, 2013 WL 

4517838, at *20 (holding an agreement to be enforceable, despite one party’s later refusal to sign it, 

because the refusing party had earlier given an objective manifestation of his assent to be bound). 

Here, Chesapeake gave several indications that it intended to be bound by the Agreement. It 

entered into, with counsel for the landowners, a letter of intent detailing the terms and procedure for 

acquiring lease rights, including the step of executing the Agreement to Accept Lease Offer. See

Doc. #148-1. Chesapeake produced a form copy of the Agreement to the landowners’ counsel, 

with the express instruction that it be distributed to the landowners at their meetings. See Doc. 

#148-1, ¶ 4.B. Chesapeake then accepted the landowners’ counter-offer that the price of the bonus 

payment be increased from $2400 to $2700 per acre. Finally, Chesapeake held open the offer period 

for the Alberys when they returned from vacation.

Accordingly, the court finds that the Alberys and Chesapeake both manifested their intent to 

be bound by the Agreement to Accept Lease Offer, and, for the reasons stated above, the parties 

formed an enforceable contract.

C. Notarization

Finally, the Alberys argue that the Agreement is not enforceable because it was not notarized 

in compliance with Ohio Revised Code § 5301.01. This argument has no merit. Section 5301.01 

provides that deeds, mortgages and “leases of any interest in real property” shall be signed by the 

grantor, mortgagor or lessor and be notarized. O.R.C. § 5301.01(A). Plainly, the Agreement to 

Accept Lease Offer is not a lease, but an agreement to enter into a lease. The Alberys have cited no 

legal authority for the proposition that § 5301.01 applies to the Agreement.

IV. Claims Disposed of by the Court’s Ruling on Enforceability

Discovery and motions practice was divided into two phases, with Phase I relating to the 

legal issue of the enforceability of the Agreement to Accept Lease Offer. See Preliminary Pretrial 

Order (doc. #127). Having held that that the Agreement is enforceable, the court finds that 

Chesapeake is entitled to summary judgment on its claim for declaratory judgment – that the 

Agreement is valid, that the Alberys are obligated under the Agreement to convey an oil and gas 

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lease to Chesapeake, and that Chesapeake’s claim to the oil and gas rights underlying the Alberys’ 

parcels is legitimate. Chesapeake is further entitled to summary judgment against the Alberys’ 

counterclaim for declaratory judgment regarding Chesapeake’s interest in the subject property.

The court notes that Chesapeake’s motion requests, without further support or elaboration,

that it be granted summary judgment on its claims for breach of contract, specific performance and 

accounting, and for an award of costs and attorneys’ fees. However, the parties have not briefed 

whether a ruling on the enforceability issue would necessarily require a ruling in Chesapeake’s favor 

on those causes of action.

The parties are instructed to confer with the magistrate judge to develop a discovery and 

briefing schedule.

V. Conclusion

Accordingly, Chesapeake’s motion for partial summary judgment as to the issue of the 

enforceability of the Agreement (doc. #148) is GRANTED, and the Alberys’ motion for partial 

summary judgment (doc. #144) is DENIED.

 s/ James L. Graham 

JAMES L. GRAHAM

United States District Judge

DATE: February 13, 2014

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