IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

BROAD STREET ENGERGY CO., : 

 : 

 Plaintiff, : 

 : Case No. 2:12-CV-711 

 v. : 

 : JUDGE ALGENON L. MARBLEY 

ENDEAVOR OHIO, LLC, : 

 : Magistrate Judge Deavers 

 Defendant. : 

 : 

OPINION & ORDER 

 This matter is before the Court on the Motion of Plaintiff Broad Street Energy Company 

(“Broad Street” or “Plaintiff”) for Summary Judgment against Defendant Endeavor Ohio 

(“Endeavor” or “Defendant”). (Doc. 15.) For the foregoing reasons, Plaintiff’s Motion is 

DENIED.

I. BACKGROUND 

Broad Street is an Ohio oil and gas operator that holds title to various mineral rights, oil 

and gas leases, easements, facilities, and other interests in lands and assets. In April 2012, 

Endeavor, the “Buyer,” entered into contract with Broad Street, the “Seller,” to purchase large 

portions of its land, oil, and gas assets for $35 million dollars (the “Purchase Price”). The parties 

executed this purchase and sale agreement (“PSA” or the “Agreement”) on April 9, 2012. 

Closing was scheduled to occur 120 days after the execution of the PSA, or on August 7, 2012. 

1. Relevant Contract Provisions 

Article IV of the PSA governs “Title, Environmental, and Easement Matters.” Section 4.2 

of the Agreement addresses “Title Defects.” Pursuant to Section 4.2(a), “[i]n order to assert a 

Title Defect, Buyer must deliver to Seller a written ‘Title Defect Notice,’” conforming to certain 

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requirements, “as soon as possible but not later than 30 days prior to the Closing Date in 

connection with each Title Defect (the ‘Title Claim Date’).” Id. at § 4.2(a).1 Pursuant to Section 

4.2(b), following issuance of a Title Defect Notice, Broad Street was entitled to cure any title 

defects prior to Closing. Section 4.2(b) further provides for an adjustment to the Purchase Price 

for certain properly-noticed, unwaived, uncured title defects. Id. at § 4.2(b).2

 Finally, Section 

4.2(c) provides that, “[n]otwithstanding anything to the contrary in this Agreement, Buyer shall 

be deemed to have waived any Title Defect as to which Buyer has not delivered to Seller a title 

 

1

 Section 4.2(a) of the PSA provides, in full: 

(a) Notice of Title Defects. In order to assert a Title Defect, Buyer must deliver to Seller a written 

“Title Defect Notice” as soon as possible but not later than 30 days prior to the Closing Date in 

connection with each Title Defect (the “Title Claim Date”). Each Title Defect Notice must be in 

writing and must satisfy the following conditions precedent: (i) identification of the affected Asset 

or Assets; (ii) a description of each Title Defect in reasonable detail; (iii) a description of the basis 

for each Title Defect; (iv) the Allocated Value of the affected Asset; (v) Buyer’s estimate of the 

Title Defect Value; and (vi) inclusion and attachment of any supporting documentation with 

respect to the foregoing. For the purposes of Section 4.2(a), the term “supporting documentation” 

for a particular Title Defect means if the basis therefor is derived from any document a copy of 

such document (or pertinent part thereof), or if the basis is derived from any gap in Seller’s chain 

of title the document preceding and following the gap will be attached, or in any other case 

documentation supporting the claim of such Title Defect, including computations. 

2

 Section 4.2(b) of the PSA provides, in full: 

(b) Title Defect Adjustment to Purchase Price. Other than a Title Defect that affects the WI or NRI 

of a Lease, the number of Net Mineral Acres underlying a Lease, or what causes a lease to be a 

Shallow Lease (which is addressed in Section 4.9), if a Lease, Unit or Well is affected by a Title 

Defect that exceed the Title Deductible, the entire Asset will be excluded from the Assignments 

and the Purchase Price will be reduced pursuant to Section 2.4 except to the extent: (i) Seller cures 

such Title Defect prior to the Closing to Buyer’s reasonable satisfaction that cure would enable 

Buyer to be conveyed Defensible Title to such Asset, (ii) Buyer agrees to waive such Title Defect, 

(iii) Seller, with Buyer’s written consent, which Buyer may withhold in its sole discretion, elects 

on or before the Closing Date or no later than the end of the Cure Period to indemnify Buyer 

against any loss attributable to any such Title Defect, or (iv) Such Title Defect relates to an 

Easement, in which event Section 4.4 will apply. If a Title Defect affect the WI or NRI of a Lease, 

or the number of Net Mineral Acres underlying a Lease, the Purchase Price shall be 

proportionately reduced or proportionately increased as the case may be, if the working interest, 

net revenue interest, or number of net mineral acres of a Lease differs from the WI, NRI, or 

number of Net Mineral Acres of a Lease. Such Title Defect shall not in and off itself cause the 

asset to be excluded from the Assignments; provided, however, Buyer will not be obligated to 

accept any increase in the WI of any Lease or Well absent a proportionate increase in the NRI of 

the same Lease or Well. 

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Defect Notice on or before the Title Claim Date.” Id. at § 4.2(c).3

 Based on the date of execution 

of the PSA, the Title Claim Date fell on Sunday, July 8, 2012. The terms “Title Defect” and 

“Title Defect Value” are defined in Section 4.1 of the Agreement. See PSA § 4.1(c), (d). 

Article X of the PSA governs termination of the Agreement. Section 10.1 provides for 

certain “Events of Termination.” In particular, Section 10.1 states: 

Events of Termination. At any time commencing on the date hereof and ending 

upon the occurrence of the Closing, and notwithstanding anything contained in 

this Agreement to the contrary, this agreement may be terminated in writing as 

follows: 

.... 

(b) by Buyer or Seller, notwithstanding anything contained in Article IV to the 

contrary, in the event that the aggregate amount of all Title Defect Values 

equals or exceeds 30% of the unadjusted Purchase Price. 

.... 

(e) by Seller ... if Seller (i) has met all of Buyer’s conditions to the Closing 

set forth in Section 9.2, (ii) is ready, willing and able to perform as 

contemplated by this Agreement on the Closing Date, and (iii) the Closing 

does not occur on the Closing Date because Buyer does not, or cannot as 

contemplated by this Agreement, perform on the Closing Date[.] 

.... 

PSA § 10.1(b), (e). 

Pursuant to the PSA, contemporaneously with the execution of the Agreement, Broad 

Street deposited $3.5 million into an escrow account (the “Escrow Amount”). See PSA § 2.2. 

The Escrow Amount is “non-refundable, except as provided for in Section 10.2” of the 

Agreement, which governs “Automatic Terminations” due to no fault of either party. Id.; § 

10.2.4

 Section 10.3, however, provides that the Escrow Amount is be returned in full to the 

 

3

 Section 4.2(c) of the PSA provides, in full: 

(c) Title Defect Waiver. Notwithstanding anything to the contrary in this Agreement, Buyer shall 

be deemed to have waived any Title Defect as to which Buyer has not delivered to Seller a Title 

Defect Notice on or before the Title Claim Date. 

4

 Section 10.2 of the PSA provides, in full: 

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Buyer in the event that “the Agreement is terminated by Buyer pursuant to any of Sections 

10.1(a)-(d),” among other circumstances. In addition, Section 10.3 specifies that the Escrow 

Amount is to be paid in full to the Seller as liquidated damages, and is the exclusive remedy 

against the Buyer, in the event the Seller terminates the Agreement pursuant to Section 10.1(e).5

 

Article XIII of the Agreement contains various miscellaneous provisions. Section 13.15, 

entitled “Specific Performance,” provides: 

Seller agrees that irreparable damage would accrue to Buyer in the event that any 

of the provisions of this Agreement are not performed by Seller in accordance 

with the terms hereof and that Buyer shall be entitled to specific performance of 

the terms hereof, in addition to, and notwithstanding, any other remedy at law or 

equity available to Buyer. 

PSA, § 13.15. In addition, at Section 13.19, the parties included a “Time is of the Essence” 

provision, which acknowledges that one party’s failure to perform timely its obligations under 

the contract may cause the other party substantial losses.6

 

 

Automatic Terminations. Notwithstanding anything to the contrary herein, and unless further 

extended by a written agreement of the Parties on or before such date, in the even the Closing has 

not occurred by September 30, 2012 due to no fault of either Party, this Agreement shall 

automatically terminate. 

5

 Section 10.3 of the PSA provides, in full: 

Termination of Escrow Account. In the event this Agreement is terminated by Buyer pursuant to 

any of Sections 10.1(a)-(d), or by Seller pursuant to Section 10.1(a) or Section 10.1(b) or this 

Agreement automatically terminates pursuant to Section 10.2, the Escrow Account will terminate 

contemporaneously therewith, Seller will not be entitled to any of the Escrow Amount, the Escrow 

Amount will be paid to Buyer without deduction therefrom, and Buyer will have no other recourse 

against Seller in connection with this Agreement, except as set forth in Article XII. In the event 

this Agreement is terminated by Seller pursuant to Section 10.1(e), the Escrow Amount will be 

paid to Seller without deduction therefrom, which payment will be considered for all purposes 

hereunder as liquidated damages, and Seller will have no other recourse against Buyer in 

connection with this Agreement, except as set forth in Article XII. In the event this agreement is 

terminated pursuant to Section 10.1(f), the Parties will determine the disposition of the Escrow 

Amount in such written agreement. 

6

 Section 13.19 of the PSA provides, in full: 

Time is of the Essence. The Parties recognize that in the performance of their respective 

obligations each Party is relying on timely performance by the other, and will schedule operations 

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2. Purported Terminations and Current Dispute 

Plaintiffs allege that, as early as March 2012, Broad Street began conducting a title 

review on the assets that were the subject of the PSA. (Arthur Decl., Doc. 15-1, at ¶ 12.) On 

Sunday, July 8, 2012, Endeavor contacted Broad Street by telephone, and informed them that 

Broad Street would provide Endeavor with written notice of certain Title Defects the following 

day. 

On Monday, July 9, 2012, Endeavor delivered by facsimile and hand delivery a letter 

under the subject line “Title Defect Notice and Termination of Purchase and Sale Agreement.” 

(Arthur Decl., Doc. 15-1, ¶ 10; Termination Letter, Doc. 15-6, 1.) The letter asserted that Broad 

Street had identified Title Defects on a total of 6,522.00 Net Mineral Acres comprising an 

aggregate Title Defect value of $19,566,000, or 55.9% of the Purchase Price. (Termination 

Letter, Doc. 15-6 at 1.) Broad Street then invoked termination of the Agreement pursuant to 

Section 10.1(b) of the PSA, and requested the return of the Escrow Amount pursuant to Section 

10.3. (Id.) The letter was accompanied by documentation identifying 66 allegedly defective 

titles. (Arthur Decl., Doc. 15-1, at ¶ 11.) At the time Broad Street accepted delivery of these 

materials, it signed a Receipt of Title Defect Notice acknowledging “that it received the box of 

materials labeled Title Defect Notices within the prescribed time allowed pursuant to Section 

4.2(a) of the PSA.” (Id. at ¶ 10-11.) 

Broad Street contends that Endeavor had no right to terminate the PSA on these grounds 

because it did not issue proper Title Defect Notices by the Title Claim Date, and therefore 

waived any such defects, pursuant to Section 4.2(c). Moreover, Broad Street asserts that it was 

ready, willing and able to close on the transaction by the Closing Date. Therefore, Broad Street 

 and incur obligations to third parties in reliance on timely performance by the other Party to this 

Agreement, and may sustain substantial loses by reason of any failure of timely performance. 

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argues that it has a right to terminate the PSA pursuant to Section 10.1(e), and retain the Escrow. 

Broad Street also asserts that specific performance is the customary equitable remedy in real 

estate transactions and therefore, it is entitled to specific performance here. 

 On August 6, 2012, Broad Street filed this breach of contract action against Endeavor. 

(Doc. 1.) Broad Street’s Amended Complaint, (Doc. 8), asserts claims for relief for breach of 

contract. Count I seeks recovery of the Escrow Amount based on Endeavor’s purportedly 

wrongful termination. Count II seeks specific performance and damages relating to Endeavor’s 

alleged breach of the PSA. 

Broad Street moved for Summary Judgment on both claims. This Court heard oral 

argument from counsel for both parties, and these matters are now ripe for review. 

II. STANDARD OF REVIEW 

Summary judgment is proper if there is no genuine issue of material fact and the movant 

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if proof of 

that fact would establish one of the elements of a claim and would affect the application of 

governing law to the rights of the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 

1984) (citing Johnson v. Soulis, Wyo., 542 P.2d 867, 872 (1975)). “All evidence and reasonable 

inferences ‘must be viewed in the light most favorable to the party opposing the motion.’” Pucci, 

628 F.3d at 759 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 

(1986)). Defendants’ burden is satisfied if there is an absence of evidence to support Plaintiff’s 

case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Street v. J.C. Bradford & Co., 886 

F.3d 1472, 1477-78 (6th Cir. 1989).

 

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III. LAW AND ANALYSIS 

A. Breach of Contract 

The PSA is “governed by and . . . construed under the laws of the State of Ohio.” PSA, § 

13.6. Under Ohio law, interpretation of a written contract is a matter of law for initial 

determination by the Court. Construction Interior Sys., Inc. v. Marriott Family Rests., Inc., 984 

F.2d 749, 754 (6th Cir. 1993) (applying Ohio law) (citing Potti v. Duramed Pharms., Inc., 938 

F.2d 641, 647 (6th Cir. 1991)); see also Long Beach Ass’n, Inc. v. Jones, 82 Ohio St. 3d 574, 576 

(1998). Moreover, contract interpretation is turned over to the fact-finder only when the relevant 

contact language is ambiguous, and the determination of whether a contract is ambiguous is 

decided as a matter of law by the Court. Potti, 938 F.2d at 647 (applying Ohio law) (citing 

Uebelacker v. Cincom Sys., Inc., 549 N.E.2d 1210 (Ohio 1988); Clarke v. Hartley, 454 N.E.2d 

1322 (Ohio 1982)). The court decides whether a contract is ambiguous as a matter of law. Id. 

(citing D.L. Baker & Co. v. Acosta, 720 F.Supp. 615, 618 (N.D. Ohio 1989)). 

When confronted with an issue of contract interpretation, “the role of a court is to give 

effect to the intent of the parties to the agreement,” which is presumed to be “reflected in the 

language used.” Cincinnati Ins. Co. v. CPS Holdings, Inc., 875 N.E.2d 31, 33-34 (Ohio 2007) 

(citing Hamilton Ins. Serv., Inc. v. Nationwide Ins. Cos., 714 N.E.2d 898 (Ohio 1999); Kelly v. 

Med. Life Ins. Co., 509 N.E.2d 411(Ohio 1987)). Moreover, “a contract is to be read as a whole 

and the intent of each part gathered from a consideration of the whole.” Id. at 35 (citing Foster 

Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities Auth., 678 N.E.2d 519 (Ohio 

1997)). Thus, a court’s construction should attempt to harmonize all provisions of the contract, 

and should not dismiss any provision as inconsistent if there exists a reasonable interpretation 

that gives effect to both. See Farmers’ Nat’l Bank v. Delaware Ins. Co., 94 N.E. 834, 839 (Ohio 

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1911) (“The plain rule of construction requires that every provision of a contract shall be given 

effect if possible.”); Expanded Metal Fireproofing Co. v. Noel Const. Co., 101 N.E. 348, 350 

(Ohio 1913) (“No provision of a contract is to be disregarded as inconsistent with other 

provisions, unless no other reasonable construction is possible. A special provision will be held 

to override a general provision only where the two cannot stand together.”) 

Here, Plaintiff argues that Defendant breached the PSA by improperly terminating and 

repudiating the Agreement. Defendant counters that it had the right to terminate under Section 

10.1(b) of the Agreement because the aggregate of the Title Defect Values exceeded 30% of the 

deal’s unadjusted Purchase Price. Specifically, Defendant asserts that the aggregate amount of all 

Title Defect Values was actually $19,566,000, or 55.9% of the unadjusted Purchase Price. 

1. Requirements to Terminate Under Section 10.1(b) 

Whether Defendant breached the PSA by improperly repudiating the contract turns on 

whether Defendant properly exercised its right to terminate under Section 10.1(b). Section 

10.1(b) of the PSA provides that the Buyer may terminate the Agreement in writing, “[a]t any 

time commencing on the date [of execution] and ending upon the occurrence of the Closing, and 

notwithstanding anything contained in th[e] Agreement to the contrary,” and “notwithstanding 

anything contained in Article IV to the contrary, in the event that the aggregate amount of all 

Title Defect Values equals or exceeds 30% of the unadjusted Purchase Price.” 

The applicability of Section 10.1(b) hinges on the existence of “Title Defect Values.” 

“Title Defect Value” is a defined term under Section 4.1 of the PSA. Specifically, for the 

purposes of the Agreement, “the term ‘Title Defect Value’ means the amount by which the 

Allocated Value of a Lease, Unit, Well, or Easement has been reduced by a Title Defect.” PSA § 

4.1(d). A “Title Defect Value” must, therefore, be predicated on a “Title Defect.” Section 4.2(c) 

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of the Agreement, however, provides that, “[n]otwithstanding anything to the contrary in this 

Agreement, Buyer shall be deemed to have waived any Title Defect as to which Buyer has not 

delivered to Seller a Title Defect Notice on or before the Title Claim Date.” Id. at § 4.2(c) 

(emphasis added). Thus, a Title Defect that is not timely and properly noticed is not actionable 

under the Agreement. In the absence of an un-waived Title Defect, there can be no un-waived 

Title Defect Value. By extension, absent any un-waived Title Defects, the aggregate value of 

actionable Title Defect Values cannot be equal to or in excess of 30% of the unadjusted Purchase 

Price – which is, of course, the condition precedent for terminating the Agreement pursuant to 

Section 10.1(b). 

Defendant argues that Section 10.1(b)’s use of the phrase “notwithstanding anything 

contained in Article IV to the contrary” means that the right to terminate under Section 10.1(b) is 

not subject to the notice and waiver provisions found in Section 4.2. As the Supreme Court has 

explained in the statutory interpretation context: 

The use of such a “notwithstanding” clause clearly signals the drafter's intention 

that the provisions of the “notwithstanding” section override conflicting 

provisions of any other section. Likewise, the Courts of Appeals generally have 

“interpreted similar ‘notwithstanding’ language ... to supersede all other laws, 

stating that ‘[a] clearer statement is difficult to imagine.’” 

Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993). Likewise, the Sixth Circuit has 

explained that “[t]he term ‘notwithstanding’ is defined as ‘without prevention or obstruction 

from or by’ or ‘in spite of.’” Deutsche Bank Nat. Trust Co. v. Tucker, 621 F.3d 460, 464 (6th Cir. 

2010) (citing In re Thompson, 372 B.R. 860, 863 (Bankr. S.D. Ohio 2007)). Thus, in Section 

10.1(b), the clause “notwithstanding ... anything to the contrary” overrides any contrary or 

conflicting provisions in Article IV. The “notwithstanding” clause does not, however, operate to 

override non-conflicting or non-contrary provisions of Article IV. 

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Here, the process set forth in Section 4.2 for asserting and/or waiving Title Defects does 

not “conflict” with, nor is it “contrary” to, the right of termination established in Section 10.1(b). 

Rather, those provisions are easily reconciled and harmonized. See Ottery v. Bland, 536 N.E.2d 

651, 652 (Ohio Ct. App. 1987) (“[O]ur construction of the contract should attempt to harmonize 

all the provisions rather than produce conflict in them.”) (citing Farmers Nat’l Bank, 94 N.E. 

834). Article IV defines when a Title Defect exists, PSA § 4.1(c), creates guidelines for 

determining the value of such defects, id. at § 4.1(d), and sets forth clear procedures by which 

Title Defects can be asserted, id. at § 4.2(a), or waived, id. at § 4.2.(c). The Agreement also 

authorizes certain specific remedies to address the problems posed by Title Defects. One remedy 

is an adjustment to the Purchase Price, which is subject to the Seller’s right to cure the Title 

Defects prior to the Closing Dates. Id. at § 4.2(b). In addition, when the aggregate value of Title 

Defects is equal to or greater than 30% of the unadjusted Purchase Price, either party may invoke 

the more extreme remedy of terminating the Agreement. See PSA § 10.1(b). That termination 

remedy is, by its terms, not subject to the right to cure associated with price adjustment, see id., 

and may be invoked “[a]t any time” prior to Closing. PSA § 10.1. 

Nothing about this dual remedial approach suggests that the remedy selected changes the 

procedure by which Title Defects are identified, valued, asserted, and/or waived. Indeed, Section 

10.1(b)’s explicit reference to the defined term “Title Defect Value” confirms that the procedural 

elements of Article IV apply to the termination remedy. Moreover, if Section 10.1(b) were 

construed to mean that the right to terminate is not subject to Article VI’s Title Defect 

procedures, this would create an unnecessary conflict with Section 4.2(c). Section 4.2(c) 

provides that, if a Title Defect Notice is not issued by the Title Claim Date, that Title Defect is 

waived “[n]otwithstanding anything to the contrary in this Agreement.” If the absence of a 

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timely Title Defect Notice does not waive a Title Defect for the purposes of Section 10.1(b), that 

would be contrary to the rule set forth in Section 4.2(c). By contrast, reading Section 10.1(b) as 

consistent with Article VI procedures harmonizes these provisions and avoids such a conflict. 

Thus, the Court finds that the PSA unambiguously requires the Buyer to comply with the 

Title Defect procedures set forth in Section 4.2(a) and (c) in order to terminate the Agreement 

based on the aggregate Title Defect Values under Section 10.1(b). 

2. Whether Defendants Properly Asserted Title Defects 

The Court now turns to the question of whether the Title Defects cited by Defendants 

were properly asserted under Section 4.2(a), or whether they were waived pursuant to Section 

4.2(c). Section 4.2(a) provides that, “[i]n order to assert a Title Defect, Buyer must deliver to 

Seller a written ‘Title Defect Notice’ as soon as possible but not later than 30 days prior to the 

Closing Date in connection with each Title Defect.” PSA § 4.2(a). Section 4.2(c) provides that 

“buyer shall be deemed to have waived any Title Defect as to which Buyer has not delivered to 

Seller a Title Defect Notice on or before the Title Claim Date.” 

To determine whether Defendant complied with the above procedures, the Court must 

consider two questions: 1) whether the Defendant’s Title Defect Notices were substantively 

adequate; and 2) whether Defendant’s Title Defect Notices were timely. 

Whether the substance Defendant’s Title Defect Notices complied with the strictures 

imposed by Section 4.2(a) is a question of fact. Section 4.2(a) specifies that a Title Defect 

Notice must satisfy the following “conditions precedent”: 

(i) identification of the affected Asset or Assets; (ii) a description of each Title 

Defect in reasonable detail; (iii) a description of the basis for each Title Defect; 

(iv) the Allocated Value of the affected Asset; (v) Buyer’s estimate of the Title 

Defect Value; and (vi) inclusion and attachment of any supporting documentation 

with respect to the foregoing. 

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Plaintiffs argue that the 66 Title Defect Notices provided did not satisfy these requirements, 

while Defendants contend the Notices do comport with the terms of the PSA. This genuine issue 

of material fact is not properly resolved at the summary judgment stage. 

The Court now turns to the question of whether Defendant’s Title Defect notices were 

timely. Plaintiff first argues that Defendant’s Title Defect Notices were not timely because they 

were not delivered “as soon as possible.” In Plaintiff’s view, the PSA contemplated a rolling 

notice of Title Defects in order to give Plaintiff a reasonable opportunity to cure each identified 

defect prior to the Closing Date, as described in Section 4.2(b). Plaintiffs allege that, based on 

the documentation accompanying Defendant’s July 9, 2012 Termination Letter, Defendants had 

notice of at least some of the alleged Title Defects as early as March 2012. Plaintiffs therefore 

argue that Endeavor did not raise its purported Title Defects “as soon as possible” as a matter of 

law, in breach of the PSA. 

For this proposition, Plaintiffs rely on Ormet Primary Aluminum Corp. v. Employers Ins. 

of Wausau, 725 N.E.2d 646 (Ohio 2000). In Ormet, the Ohio Supreme Court considered a notice 

provision in an insurance contract which provided that, “[w]hen an accident occurs written notice 

shall be given by or on behalf of the insured to the company or any of its authorized agents as 

soon as practicable.” Id. at 653. In determining the meaning of the phrase “as soon as 

practicable,” the Court explained: 

A provision in an insurance contract requiring “immediate” notice means that the 

notice must take place “within a reasonable time under the circumstances of the 

case.” Similarly, we have held that “[a] provision in an insurance policy requiring 

‘prompt’ notice to the insurer requires notice within a reasonable time in light of 

all of the surrounding facts and circumstances.” Thus, a notice provision requiring 

notice to the insurer “as soon as practicable” requires notice within a reasonable 

time in light of the surrounding facts and circumstances. 

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Id. at 655 (internal citations omitted) (quoting Travelers' Ins. Co. v. Myers, 57 N.E. 458 

(Ohio 1900), overruled in part by Employers' Liab. Assur. Corp. v. Roehm, 124 N.E. 223 

(Ohio 1919); Heller v. Std. Acc. Ins. Co., 160 N.E. 707 (Ohio 1928); Ruby v. Midwestern 

Indemn. Co., 532 N.E.2d 730, 732 (Ohio 1988)). The Court further explained that 

“[w]hile the question of whether the insured met the notice condition is usually a question 

for the jury, an unexcused significant delay may be unreasonable as a matter of law.” Id.

at 653. Ormet concluded that the insured’s delay was unreasonable as a matter of law 

because the undisputed record showed that the insured had known of the water 

contamination caused by its actions for more than twenty-five years before informing the 

insurer. Id. at 656-657. 

Here, the PSA’s use of the term “as soon as possible,” PSA § 4.2(a), must 

likewise “require[] notice within a reasonable time in light of the surrounding facts and 

circumstances.” Ormet, 725 N.E.2d at 655; Goodyear Tire & Rubber, Co. v. Aetna Cas. 

& Sur. Co., 769 N.E.2d 835, 842 (Ohio 2002). Again, whether notice was given within a 

reasonable period of time is a heavily fact-based inquiry. See Goodyear, 679 N.E.2d at 

843 (distinguishing Ormet and finding that a genuine question of fact existed as to 

whether ten year period between awareness of possible contamination and notice to 

insurer was reasonable under the circumstances). Although the record reflects that 

Defendant possessed at least some documents related to some Title Defects as of 

March/April 2012, a Title Defect Notice has multiple components and requires a range of 

supporting documentation. See PSA § 4.2(a). Thus, it is not clear from the record that 

Defendant had in its possession and withheld the components of complete Title Defect 

Notices. Moreover, given the number of notices being prepared, and the volume of the 

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supporting documentation, a reasonable jury could find that it was not unreasonable for 

Defendant to take 2-4 months to deliver the Title Defect Notices. On these facts, “[this 

Court is] not inclined to bypass the factfinder on the question of whether [] notice was 

unreasonably late.” Goodyear, 769 N.E.2d at 843. 

Plaintiff also argues that Defendant’s Title Defect Notices were not timely because they 

were not delivered in writing by the Title Claim Date of Sunday, July 8, 2012. It is undisputed 

that Defendant called Plaintiff on July 8 and verbally communicated that written Title Defect 

Notices and supporting documentation would be delivered the next day, and that Defendant did 

in fact deliver the referenced documents on Monday, July 9, 2012. Plaintiffs argue that this delay 

was unacceptable because of the Agreement’s “Time Is of the Essence” provision. See PSA § 

13.19. Defendants argue that this delay was reasonable given that the Title Claim Date was a 

Sunday and no mail or courier services were available to deliver the documents. Defendants 

also argue that the delay was immaterial and did not prejudice Plaintiffs. 

The PSA contains no general provision that addresses how the time periods referenced in 

the Agreement are to be computed. Thus, the PSA does not speak generally to the question of 

what happens when a deadline defined by a period of days is to be construed when the last day of 

the period falls on a Sunday. Contrast Fed. R. Civ. P. 6(a)(1)(C)("When the [time] period is 

stated in days ...if the period would end on a Saturday, Sunday, or legal holiday, the period 

continues to run until the same time on the next day that is not a Saturday, Sunday, or legal 

holiday."); Ohio R. Civ. P. 6(A) ("In computing any period of time ... [t]he last day of the period 

so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which 

event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal 

holiday."). Nor does Section 4.2 contain any specific guidance as to what happens when the 

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Title Claim Date falls on a Sunday. Thus, Plaintiffs’ assertion that the Title Defect Notices were 

untimely, and Defendant’s contention that the Title Defect Notices were timely, both appear to 

be reasonable interpretations of Section 4.2(a). As such, the Court finds that the applicable 

deadline for the Title Claim Date is ambiguous as a matter of law. See Potti, 938 F.2d at 647 

(“[T]he determination whether a contract is ambiguous is made as a matter of law by the court.”) 

(“Ambiguity exists ... where contract language is susceptible to two or more reasonable 

interpretations.”) (citing Wells v. American Elec. Power Co., 548 N.E.2d 995 (Ohio 1988)).

The parties' course of conduct in this regard confirms this conclusion. Extrinsic evidence 

in the record shows that, at the time Plaintiff accepted delivery of the Title Defect Notice 

materials on July 9, 2012, it signed a “Receipt of Title Defect Notice” acknowledging “that it 

received the box of materials labeled Title Defect Notices within the prescribed time allowed 

pursuant to Section 4.2(a) of the PSA.” (Arthur Decl., Doc. 15-1, ¶ 10-11.) Thus, the Court 

concludes that the parties’ intent with respect of the Title Claim Date is a disputed question of 

material fact which precludes summary judgment. See Potti, 938 F.2d at 647 (“[W]hen the 

relevant contract language is ambiguous ... the job of interpretation is turned over to the fact 

finder.”). 7 Nevertheless, should a fact-finder determine that the parties’ intent was to set the last 

day of the notice period on Sunday, July 8, 2012, written notice provided on July 9, 2012 would 

be untimely in light of the “Time is of the Essence” provision in the contract. See Glickman v. 

Coakley, 488 N.E.2d 906, 913-14 (Ohio Ct. App. 1984) (holding that, in option contract where 

 

7

 Plaintiff’s citation to Hussey v. Daum, No. 14246, 1994 WL 237476 (Ohio Ct. App. Jun. 1, 1994), is inapposite. In 

Hussey, the Ohio Court of Appeals considered the whether the buyer in a real estate contract waived any defects 

pursuant to a clause that read: “FAILURE TO NOTIFY SELLER OF ANY DEFECTS BEFORE EXPIRATION OF 

THE INSPECTION PERIOD SHALL CONSTITUTE A WAIVER OF SUCH DEFECTS, AND PURCHASER 

SHALL TAKE THE PROPERTY ‘AS IS’ WITH RESPECT TO SUCH DEFECTS.” Id. at *3. The Hussey Court 

found that the buyer gave notice five days after the close of the 15-day notice period, and concluded that the failure 

to give timely notice waived any defects. Id. at *4. Here, in contrast, the Court makes no finding as to when the 

notice period ended, because it finds the PSA to be ambiguous in that regard. In addition, because the notice period 

in Hussey ended on a Wednesday, that case does not speak to the question of computation of time under a contract 

when the last day of the notice period falls on a Sunday. 

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time was of the essence, contractual obligation to deliver notice by Saturday March 15 was not 

satisfied by Monday March 17 delivery). If the Title Defect Notices were not timely, the Title 

Defects they reference are waived pursuant to Section 4.2(c) of the PSA. 

 Based on the above, the Court finds that there are genuine disputes of material fact as to 

whether Defendant properly asserted the alleged Title Defects pursuant to the procedures in 

Section 4.2(a) of the PSA, or whether the cited Title Defects were waived. If a fact-finder 

determines that Defendant properly asserted Title Defects and, therefore, was entitled to 

terminate the Agreement under Section 10.1(b), Defendant’s repudiation would not be in breach 

of the PSA. Plaintiff’s Motion for Summary Judgment on Defendant’s alleged breach of the 

Agreement is, therefore, DENIED. 

B. Remedy 

With respect to remedies, Plaintiff moves this Court to find that Plaintiff is both: 1) 

entitled to retain the Escrow Amount; and 2) entitled to specific performance. 

Whether Plaintiff is entitled to the Escrow turns on whether Defendant breached the PSA. 

If a fact-finder determines that Defendant properly terminated the Agreement under Section 

10.1(b), Defendant would be entitled to the entirety of the Escrow Amount. See PSA § 10.3 (“In 

the event this Agreement is terminated by Buyer pursuant to any of Sections 10.1(a)-(d), ... the 

Escrow Account will terminate contemporaneously therewith, Seller will not be entitled to any of 

the Escrow Amount, the Escrow Amount will be paid to Buyer without deduction therefrom.”). 

In contrast, if a fact-finder determines that Defendant was not entitled to invoke Section 

10.1(b), Plaintiff would be within its rights to terminate the Agreement pursuant to Section 

10.1(e). See PSA § 10.1(e) (“[T]his Agreement may be terminated in writing ... (e) by Seller ... 

if Seller (i) has met all of Buyer’s conditions to the Closing set forth in Section 9.2, (ii) is ready, 

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willing and able to perform as contemplated by this Agreement on the Closing Date, and (iii) the 

Closing does not occur on the Closing Date because Buyer does not... perform on the Closing 

Date[.]”). Section 10.3 of the PSA provides that, where the Agreement “is terminated by Seller 

pursuant to Section 10.1(e), the Escrow Amount will be paid to Seller without deduction 

therefrom, which payment will be considered for all purposes hereunder as liquidated 

damages....” As such, Plaintiff would be entitled to the entirety of the Escrow Amount. 

 Nevertheless, even if Plaintiff is able to prove the Defendant breached the PSA, Plaintiff 

would not be entitled to a remedy of specific performance. Plaintiff argues that specific 

performance is appropriate here as the customary remedy for disputes involving real estate. 

Indeed, as Ohio courts have explained: 

Generally where the subject matter of the contract is unique, there can be no 

adequate remedy at law. Any specific piece of land is unique, thus, there can be 

no adequate remedy at law. This rule applies to both vendee and vendor 

claimants. ‘The purchaser in a contract for the conveyance of land has a right to 

specific performance because of the unique character of realty, and the vendor can 

invoke equity for the purpose of compelling the buyer to accept a conveyance and 

to pay the purchase money, since the rule is that the right to specific performance 

must be mutual.’ 

Ruhlen v. Columbus First Realty Co., Case. No. 6-83-13, 1985 WL 9146, 6-7 (Ohio Ct. App. 

May 17, 1985) (emphasis omitted) (quoting 49 Ohio Jurisprudence 2d (1961) 571, Specific 

Performance, § k6).

Here, however, the specific contractual provisions of the PSA supersede the common law 

norm. Section 10.3 of the PSA provides that, where the Seller terminates pursuant to Section 

10.1(e), retention in full of the Escrow Amount “will be considered for all purposes hereunder as 

liquidated damages, and Seller will have no other recourse against Buyer in connection with this 

Agreement.” PSA § 10.3 (emphasis added). Thus, if Plaintiff is correct as to how the Agreement 

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was terminated in the matter sub judice, Section 10.3 establishes that Plaintiff’s exclusive 

remedy is retention of the Escrow Amount. 

Moreover, Section 13.15 of the PSA, entitled “Specific Performance,” provides “that 

Buyer shall be entitled to specific performance of the terms [of the Agreement], in addition to, 

and notwithstanding, any other remedy at law or equity available to Buyer.” Thus, although 

Section 13.15 stipulates that Defendant is entitled to specific performance in the event of the 

Seller’s breach, that provision conspicuously omits any reference to specific performance as a 

remedy for the Seller. Hence, the canon of expressio unius dictates that in so drafting the PSA, 

the parties intended to elect asymmetric remedies for Buyer and Seller. See State ex rel. Paluf v. 

Feneli, 630 N.E.2d 708, 712 (Ohio 1994) (“Expressio unius est exclusio alterius is an 

interpretative maxim meaning that if certain things are specified in a law, contract, or will, other 

things are impliedly excluded.”) (citing Harris v. Atlas Single Ply Sys., Inc., 593 N.E.2d 1376, 

1378 (Ohio 1992); Vincent v. Zanesville Civ. Serv. Comm., 560 N.E.2d 226, 229 n.2 (Ohio 

1990)). 

Given the language of Section 10.3 and Section 13.15, the Court finds that the PSA is 

unambiguous that – if Defendant breached the Agreement and Plaintiff thus properly terminated 

under Section 10.1(e) – Plaintiff’s exclusive remedy would be an award of the full Escrow 

Amount. Plaintiff’s Motion for Summary Judgment as to available remedies is, therefore, 

DENIED. 

 

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IV. CONCLUSION 

Based on the foregoing, Plaintiff’s Motion for Summary Judgment is DENIED. 

IT IS SO ORDERED. 

s/Algenon L. Marbley_________ 

ALGENON L. MARBLEY 

UNITED STATES DISTRICT JUDGE 

 

DATE: September 30, 2013

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