Turner Broadcasting System, Inc. v. McDavid

This case involves Turner Broadcasting System, Inc.’s (“Turner”) alleged breach of an oral agreement to sell the Atlanta Hawks and Atlanta Thrashers sports teams and the operating rights to Philips Arena to appellee David McDavid. Following a jury trial, a $281 million verdict was entered in favor of McDavid on his breach of contract claim. Turner filed a motion for judgment notwithstanding the verdict (“j.n.o.v.”), or in the alternative, for a new trial, which the trial court denied. Turner appeals, contending that (1) the evidence failed to show (a) that the parties intended to be bound in the absence of an executed written agreement or (b) that the parties reached agreement on all material terms of the sale; (2) the evidence failed to show that the basketball and hockey leagues would have approved the sale; (3) the trial court erred in failing to give its requested jury charge on league approval; and (4) the damages were speculative, excessive, and decidedly against the weight of the evidence. 1 We discern no error and affirm.

If a jury has returned a verdict, which has been approved by the trial judge, then the same must be affirmed *594 on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the verdict will be upheld on appeal.

(Citation and punctuation omitted.) City of Atlanta v. WH Smith Airport Svcs., 290 Ga. App. 206 (659 SE2d 426) (2008). See also Rental Equip. Group v. MACI, LLC, 263 Ga. App. 155, 157 (1) (a) (587 SE2d 364) (2003).

So viewed, the evidence at trial showed that Turner is the former owner of the Hawks and the Thrashers, with operating rights to Philips Arena (the “assets”). In October 2002, Turner publicly announced its interest in selling the assets as part of a “deleveraging program” to reduce its mounting debts. In November 2002, McDavid expressed an interest in buying the assets and entered into negotiations with Turner. 2

On April 30, 2003, the parties executed a “Letter of Intent,” outlining the proposed sale terms and establishing a 45-day exclusive negotiating period. On June 14, 2003, the Letter of Intent expired with no agreement, but the parties continued to negotiate. When McDavid inquired about extending the Letter of Intent, Turner’s principal negotiator told him, “Don’t worry about it. We’re very, very close to a deal. You’re our guy.”

The parties scheduled a meeting for mid-July 2003, expecting that they would be able to resolve all of the outstanding issues and finalize their agreement. At the meeting, Turner raised a tax loss allocation issue, which the parties failed to resolve. Frustrated with the lack of progress being made during the negotiations, McDavid walked out of the meeting, while his advisors continued their efforts to resolve the tax issue.

On July 30, 2003, the parties engaged in a conference call. During the conference call, McDavid’s advisors stated that McDavid would agree to Turner’s proposed resolution of the tax issue on the condition that it would resolve all the issues and finalize the deal. Turner’s CEO, Phil Kent, agreed and announced, “we have a deal.”

The parties subsequently exchanged multiple drafts of the purchase agreement and its exhibits. During the legal drafting *595 process, the parties’ counsel identified additional “open issues” for the written agreements.

On or about August 1, 2003, Turner drafted an internal memo to its employees and planned for a press conference to publicly announce the deal with McDavid. In August 2003, Turner consulted with McDavid and his advisor on team management decisions, including the hiring of a general manager and a head coach for the Hawks. Turner also obtained McDavid’s approval before hiring a trainer, assistants, and scouts.

On or about August 16, 2003, as the drafting process continued, Turner’s executive and principal negotiator, James McCaffrey, approached McDavid about a simplified restructure for the transaction, assuring him that the restructure would “not change the deal,” that the “deal was done,” and that “they were ready to close on the deal that [they] made on July 30th.” McDavid agreed to the simplified restructure, and the attorneys circulated revised draft agreements that reflected the restructured terms.

On August 19, 2003, the corporate board of directors of Time Warner, Turner’s parent company, approved the sale of the assets to McDavid based upon the restructured terms. However, two of the board members, Ted Turner and Steve Case, opposed the deal, concerned that the assets had been undervalued and had resulted in a “fire sale.”

On the day after the Turner board of directors meeting, Ted Turner’s son-in-law, Rutherford Seydel, and the son of a member of the Hawks’ board of directors, Michael Gearon, Jr., approached Turner about purchasing the assets on behalf of their corporation, Atlanta Spirit, LLC. While Turner continued to exchange drafts of the purchase agreement with appellees, it also began negotiations with Atlanta Spirit.

On or about September 12, 2003, McDavid and Turner verbally reached a final agreement on each of the alleged open items for the written agreement and Turner’s principal negotiator announced, “[t]he deal is done. Let’s get documents we can sign and we’ll meet in Atlanta for a press conference and a closing [early next week].” But later that same day, Turner’s principal negotiator and its in-house counsel signed an agreement for the sale of the assets to Atlanta Spirit.

On September 15, 2003, as McDavid was preparing to travel to Atlanta for the closing and a press conference to announce the sale, he received a phone call informing him that Turner was “going in another direction” and had sold the assets to Atlanta Spirit. McDavid and his advisors, who had spent months finalizing the McDavid deal, were “stunned,” “shocked,” “disappointed,” and felt “completely broadsided.”

*596 McDavid filed suit against Turner, alleging claims of breach of an oral contract to sell the assets, promissory estoppel, fraud, and breach of a confidentiality agreement. Turner denied the existence of any binding agreement, arguing that the parties had not executed a final written purchase agreement and had continued to negotiate the material terms of the transaction. Following an eight-week trial, the jury returned a verdict in favor of McDavid on the breach of oral contract claim and awarded $281 million in damages. 3 Judgment was entered accordingly.

1. Turner first argues that the trial court erred in denying its motion for j.n.o.v. or for a new trial on the breach of oral contract claim. Turner contends that the uncontroverted evidence established that the parties manifested an intent to be bound only in writing, and that the parties never reached agreement on all material terms of the sale. We disagree. The evidence on the issue of contract formation was highly controverted and presented genuine issues of fact for the jury’s resolution. Because there was evidence supporting the jury’s verdict, we must affirm. See City of Atlanta, 290 Ga. App. at 206; Rental Equip. Group, 263 Ga. App. at 157 (1) (a); Northern Assurance Co. &c. v. Roll, 176 Ga. App. 893 (1) (a) (338 SE2d 870) (1985).

“To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” OCGA § 13-3-1. See Cline v. Lee, 260 Ga. App. 164, 168 (1) (581 SE2d 558) (2003). Turner’s contentions relate only to the assent element.

As an initial matter, Georgia law recognizes that oral contracts falling outside the purview of the Statute of Frauds 4 may be binding and enforceable. See Cochran v. Eason, 227 Ga. 316, 318 (1) (180 SE2d 702) (1971) (holding that “[a]ssent to the terms of a contract may be given other than by signatures”); Taylor v. Taylor, 217 Ga. 20, 22-23 (2) (120 SE2d 874) (1961) (recognizing the validity of an oral agreement, despite the written agreement having been unsigned); Rushin v. Ussery, 298 Ga. App. 830, 832-833 (1), (2) (681 SE2d 263) (2009) (breach of contract claim based upon oral contract to make a will where claim fell outside Statute of Frauds); McKenna *597 v. Capital Resource Partners, IV, L.P., 286 Ga. App. 828, 832-833 (1) (650 SE2d 580) (2007) (concluding that questions of fact existed as to whether the parties had reached a verbal settlement agreement, notwithstanding their failure to sign a written document); Cline, 260 Ga. App. at 167-168 (1) (affirming jury’s verdict in favor of plaintiff on a breach of an oral contract claim relating to a subdivision development); Pacrim Assocs. v. Turner Home Entertainment, 235 Ga. App. 761, 764-766 (1) (510 SE2d 52) (1998) (breach of contract claim based upon evidence of a binding oral agreement); Danfair Properties v. Bowen, 222 Ga. App. 425 (474 SE2d 295) (1996) (affirming jury verdict awarding plaintiff commissions based upon an oral employment agreement); Gen. Hosps. of Humana v. Jenkins, 188 Ga. App. 825, 826-827 (1) (374 SE2d 739) (1988) (affirming judgment based upon a valid oral lease); Merry v. Ga. Big Boy Mgmt., 135 Ga. App. 707, 708 (1) (218 SE2d 694) (1975) (same). Even complex or expensive contracts may be oral, as long as the evidence establishes the parties’ mutual assent to all essential terms of the contract. See, e.g., Bibb Distrib. Co. v. Stewart, 238 Ga. App. 650, 653-654 (1) (519 SE2d 455) (1999) (affirming judgment on breach of an oral agreement pertaining to a $6.8 million insurance policy); Royal Mfg. Co. v. Denard & Moore Constr. Co., 137 Ga. App. 650, 651 (2) (224 SE2d 770) (1976) (holding that a contract for the construction of a commercial building could be oral). See also APAC-Southeast v. Coastal Caisson Corp., 514 FSupp.2d 1373, 1381 (II) (B) (2) (N.D. Ga. 2007) (applying Georgia law and denying summary judgment on a breach of an oral contract claim relating to a construction project).

In determining whether there was a mutual assent, courts apply an objective theory of intent whereby one party’s intention is deemed to be that meaning a reasonable man in the position of the other contracting party would ascribe to the first party’s manifestations of assent, or that meaning which the other contracting party knew the first party ascribed to his manifestations of assent. Further, in cases such as this one, the circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement. Where such extrinsic evidence exists and is disputed, the question of whether a party has assented to the contract is generally a matter for the jury.

(Citations and punctuation omitted.) McKenna, 286 Ga. App. at 832 (1). See also Cox Broadcasting Corp. v. Nat. Collegiate Athletic Assn., 250 Ga. 391, 395 (297 SE2d 733) (1982); Terry Hunt Constr., Inc. v. *598 AON Risk Svcs. &c., 272 Ga. App. 547, 551 (3) (613 SE2d 165) (2005); Legg v. Stovall Tire &c., 245 Ga. App. 594, 596 (538 SE2d 489) (2000). In this case, the determination of whether an oral contract existed, notwithstanding the parties’ failure to sign a written agreement, was a question of fact for the jury to decide. See McKenna, 286 Ga. App. at 832-833 (1); Terry Hunt Constr., 272 Ga. App. at 551-552 (3); Legg, 245 Ga. App. at 596-597.

(a) Parties’ Intent to be Bound.

(i) The Parties’ Expressions and Conduct. The parties’ objective manifestations of their mutual assent and intent to be bound to the McDavid acquisition deal included testimony that Turner’s CEO formally announced, “we have a deal” during the parties’ July 30 conference call. On or about August 16, 2003, Turner’s principal negotiator further confirmed the existence of an agreement during discussions pertaining to the deal restructure by stating that the “deal was done,” and that “they were ready to close on the deal that [they] made on July 30th.” And yet again, on or about September 12, 2003, during the course of another conference call to confirm the parties’ final agreement on the terms to be incorporated into the written agreements, Turner’s principal negotiator announced, “[t]he deal is done. Let’s get documents we can sign and we’ll meet in Atlanta for a press conference and a closing [early next week].”

In addition, Turner engaged in conduct from which the jury could conclude that an agreement had been reached. On or about August 1, 2003, Turner drafted an internal memo to its employees and planned for a press conference to publicly announce the deal with McDavid. 5 Furthermore, in August 2003, Turner consulted with McDavid and his advisor on team management decisions, including the hiring of a general manager and a head coach for the Hawks. Turner also obtained McDavid’s approval before hiring a trainer, assistants, and scouts. 6 There was testimony that according to *599 industry standards, a buyer typically would not be given such formal input on team decisions until after the parties were committed and had formed an agreement. This evidence authorized the jury to conclude that both parties intended to be bound to the McDavid acquisition deal.

(ii) The Letter of Intent. Turner nevertheless argues that no binding oral agreement could have been reached since the parties’ April 30 Letter of Intent expressly provided that “neither party nor any of [their] affiliates [would] be bound . . . unless and until such party (or affiliate) has executed the Definitive Agreements” and that “[n]o such binding agreement shall exist or arise unless and until the parties have negotiated, executed and delivered to each other Definitive Agreements.” Undoubtedly, the express terms of the Letter of Intent reflect an intent that the parties would not be bound absent written, signed agreements. Significantly, however, it is undisputed that the terms of the Letter of Intent expired on June 14, 2003, and further that Turner declined to renew it. 7 The Letter of Intent provided that all of its terms, with the exception of the confidentiality terms, 8 would “automatically terminate and be of no further force and effect at 5:00 p.m. (Atlanta time) on [June 14, 2003,] the date on which the Exclusive Negotiation Period expire[d].” Turner’s general counsel affirmed that when the Letter of Intent expired, it “no longer ha[d] any meaning” and the only terms that survived related to confidentiality. The jury therefore was authorized to conclude that upon the expiration of the Letter of Intent, the terms imposing the written agreement requirement also expired and had no effect. And, as recognized by Turner’s general counsel, if Turner intended for the writing requirement of the Letter of Intent to remain effective after the expiration date, it could have set forth a survival provision in the same manner that it did for the confidentiality terms. Its failure to do so serves as some evidence contradicting Turner’s claim that it maintained an objective manifestation to be bound only by a written agreement.

Turner’s general counsel stated that the Letter of Intent was the only place where the parties had expressed their intent to be bound exclusively by executed, written agreements. McDavid and his advi- *600 sors testified that after the Letter of Intent expired, no one expressed an intention that the parties would be bound only upon the execution of written contracts. When Turner’s CEO and principal negotiator made their statements, “we have a deal” and the “deal was done,” McDavid and his advisors believed that both parties intended to be bound to the agreement. Although Turner maintains that its intent to be bound only by written agreements never changed, its general counsel conceded that statements such as “we have a deal” may convey otherwise. See Cochran, 227 Ga. at 317-318 (1) (assent may be manifested by the parties’ expressions in addition to the parties’ contract language). The parties’ failure to communicate an intent to be bound only in writing following the expiration of the Letter of Intent provided some evidence that an oral agreement was not precluded. See Mason v. Rabun Waste, 174 Ga. App. 462, 463 (1) (330 SE2d 400) (1985).

(iii) Contemplation of Written Instrument. It is undisputed that the parties intended to sign written documents that memorialized the terms of their oral agreement. McDavid and his advisors testified that in accordance with the customary deal-making process, the parties first had to reach an oral agreement upon the material terms, and then the lawyers were expected to prepare the written documents that memorialized the parties’ agreed upon terms. 9 The evidence further established that the parties’ respective lawyers exchanged multiple draft agreements purportedly attempting to ensure that the documents reflected the agreed upon terms. 10 And, while the draft agreements contained a merger clause providing that the written agreement would “supersede all prior agreements, understandings and negotiations, both written and oral,” (emphasis supplied) such language could be construed as acknowledging the possibility of an oral agreement, particularly under these circumstances in which the merger clause did not become effective.

McDavid’s witnesses further testified that all of the material issues for the written agreements had been resolved by mid-September, when they were planning to travel to Atlanta to formally *601 sign the documents and publicly announce the deal. 11 The evidence thus authorized a finding that the only reason for the failure to execute the written agreements was Turner’s refusal to proceed with McDavid’s deal and its decision to consummate a deal with Atlanta Spirit instead.

While circumstances indicating that the parties intended to prepare a subsequent writing is strong evidence that they did not intend to be bound by a preliminary agreement, contrary evidence bearing upon the parties’ intent to be bound and reflecting the existence of a binding oral agreement presents a question of fact for the jury’s determination. See Denton v. Etheridge, 73 Ga. App. 221, 225-226 (2) (36 SE2d 365) (1945). Moreover, “[a] It hough the parties contemplated the future execution of a written . . . agreement, the jury was authorized to find that a binding oral agreement was in effect, and the failure to sign the written instrument did not affect the validity of the oral agreement.” (Citation and punctuation omitted.) Gen. Hosps. of Humana, 188 Ga. App. at 827 (1); Merry, 135 Ga. App. at 708 (1). See also Barton v. Chemical Bank, 577 F2d 1329, 1336 (5th Cir.1978) (“At common law an oral contract may be enforceable despite the contemplation of a subsequent written contract.”) (applying Georgia law); Pacrim Assocs., 235 Ga. App. at 765-766 (1).

(iv) Requirement of League Approvals. In support of its claim that the parties only intended to be bound in writing, Turner points to evidence that approvals from the National Basketball Association (“NBA”) and the National Hockey League (“NHL”) were required to consummate the transaction, and that such league approvals would not be conferred absent a written agreement. While the leagues’ requirement for a writing serves as some evidence of the parties’ intent, it is not dispositive in this case. “[T]he requirement of [league] approvals] was a condition of contract performance, not of contract formation.” Bd. of Regents &c. of Ga. v. Doe, 278 Ga. App. 878, 882 (1) (b) (630 SE2d 85) (2006). See also Jackson Elec. Membership Corp. v. Ga. Power Co., 257 Ga. 772, 773-774 (1) (364 *602 SE2d 556) (1988); Goobich v. Waters, 283 Ga. App. 53, 56-57 (1) (640 SE2d 606) (2006); Herrman v. Conway, 83 Ga. App. 888, 890-891 (1) (65 SE2d 41) (1951), overruled on other grounds by Crankshaw v. Stanley Homes, Inc., 131 Ga. App. 840, 842 (1) (207 SE2d 241) (1974). In other words, the requirement for league approvals was not an element of contract formation, but rather was a condition subsequent to be met after the parties had already formed the oral agreement by expressing their assent. As indicated above, there was evidence from which the jury could conclude that the parties entered into a binding oral agreement with the intent to sign written documents that memorialized the terms, but failed to do so as a result of Turner’s breach. By entering into their agreement, “each promisor has impliedly promised to use his best efforts to bring about the happening of the condition to his promise.” (Citation and punctuation omitted.) Jackson Elec. Membership Corp., 257 Ga. at 774 (1). Turner, therefore, could not avoid the existence of an oral agreement by breaching and preventing the fulfillment of the condition subsequent. See id.; Bd. of Regents &c. of Ga., 278 Ga. App. at 881-882 (1) (b); Herrman, 83 Ga. App. at 890-891 (1).

(b) Agreement upon Adi Material Terms. To constitute a binding agreement, the evidence must establish that the parties agreed upon all essential terms. See OCGA § 13-3-2 (“The consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contracts”); McKenna, 286 Ga. App. at 833 (2).

Again, the evidence on this issue was hotly contested and presented a genuine issue for the jury’s determination. While Turner points to evidence that several open issues remained for discussion, that evidence merely conflicted with McDavid’s evidence that all the material issues had been resolved. Turner specifically alleges that the parties had not resolved issues relating to television rights, parent capitalization, substitute collateral for the Hawks lien, and employee benefits. McDavid and his advisors, however, testified to the agreed upon terms that had resolved those issues.

Specifically, there was evidence that on June 13, 2003, Turner’s principal negotiator sent an e-mail confirming that the television rights were not open issues. Additionally, according to McDavid, he had agreed to pay between $60 million to $70 million for parent capitalization, and the issue had been resolved on April 29, 2003 before they signed the Letter of Intent. 12 As to the issue of the lien, on June 20, 2003, Turner’s CEO sent a memo to the board for approval of the transaction, indicating that McDavid had agreed to indemnify Turner if the bond authority required it to post collateral *603 for reinstatement of the Hawks lien. Finally, McDavid and his advisors testified that employee benefits was not an open issue because Turner’s principal negotiator informed them that the level of benefits was not material 13 and McDavid had agreed to offer benefits that were standard for the league.

McDavid and his advisors also testified that the material terms of the deal related to the purchase price, assets to be transferred, payment terms, liabilities that McDavid assumed, McDavid’s obligation to post collateral for release of the Hawks lien, McDavid’s obligation to replace a $15 million letter of credit, and Turner’s obligation to retain certain severance obligations. There was some evidence reflecting an agreement upon each of these terms.

A June 20, 2003 memo from Turner’s CEO to the board set forth the transaction’s structure and described the agreed upon terms. 14 On August 18, 2003, when the transaction was restructured as to the contribution of support payments, a memo describing the restructured deal was also submitted to the board for approval. Based upon Turner’s board memos and the testimony of McDavid and his advisors, McDavid was to obtain an 85% ownership interest in the assets for a purchase price of approximately $215 million, representing the total enterprise value. McDavid agreed to accept liabilities, including deferred player compensation, capital accounts, and $140 million of arena debt for his acquisition of arena rights. Turner was to contribute $104 million in support payments to offset operating losses during the transition, which had the effect of reducing the purchase price to $96 million in accordance with the simplified restructure of the deal. The Hawks lien that was in place to secure the bonds on the arena had to be released to allow McDavid to obtain a bank loan to finance a portion of the transaction; Turner agreed to put up a letter of credit to have the Hawks lien released. Under the arena operating agreement, the letter of credit would be released after one year if certain revenue levels continued to be met. If, however, the arena failed to meet the revenue requirement and the lien was reinstated, McDavid agreed to be responsible for the reinstatement costs. McDavid also agreed to post a $60 million letter *604 of credit to indemnify Turner in the event of the reinstatement. If an employee was terminated 18 months after closing, Turner agreed to pay the severance. The tax loss allocation issue, which was the source of contention at the parties’ mid-July meeting, was resolved by an agreement that provided both parties with the amounts that they desired. Turner’s board approved the deal based upon the terms set forth in the board memos.

According to McDavid, all of the material deal terms had been resolved; but when Atlanta Spirit entered into negotiations, Turner suddenly tried to reopen the issues to derail McDavid’s deal and to buy time to complete the deal with Atlanta Spirit. Atlanta Spirit’s counsel testified that he assumed Turner was using documents from the McDavid deal for their transaction since the terms were already very detailed and the drafts were complete. 15 Material terms of the Atlanta Spirit deal, including the percentage of ownership interest, purchase price value, working capital liabilities, employee severance terms, letter of credit terms for the arena, expansion fee terms, preferred vendor terms regarding naming rights, and television rights, were the same or substantially similar to those reached in the McDavid deal. While McDavid spent eight to ten months negotiating the terms of his deal, Atlanta Spirit obtained the same deal within a matter of weeks.

Despite the conflicts in the evidence, the evidence adduced at trial supports the jury’s determination that the parties had reached an agreement on all material terms such that a binding oral agreement had been reached by September 12, 2003 when Turner announced, “[t]he deal is done,” before Turner went “in another direction” with Atlanta Spirit. “This court existing only for the correction of errors of law, and having no authority to determine the mere weight of the evidence, and the verdict for the plaintiff being fully authorized by testimony, the trial judge did not err in the exercise of his discretion in refusing a new trial.” (Citation and punctuation omitted.) Northern Assurance Co. &c., 176 Ga. App. at 893 (1) (a). Likewise, “[sjince the evidence authorized the verdict in plaintiff’s favor, the trial court properly denied [Turner’s] motion for judgment notwithstanding the verdict.” Id. at 894 (1) (b).

(c) Persuasive Authority. Turner argues that affirmance of the jury’s verdict in this case is contrary to the common law and that of most jurisdictions. We disagree.

*605 Georgia has established legal precedent governing the resolution of this oral contract formation issue. See APAC-Southeast, 514 FSupp.2d at 1380-1381 (II) (B) (2) (applying Georgia law). See also Cox Broadcasting Corp., 250 Ga. at 395; Cochran, 227 Ga. at 317-318 (1); Taylor, 217 Ga. at 22-23 (2); Rushin, 298 Ga. App. at 832-833 (1), (2); McKenna, 286 Ga. App. at 832-833 (1); Terry Hunt Constr., 272 Ga. App. at 551 (3); Legg, 245 Ga. App. at 596; Pacrim Assocs., 235 Ga. App. at 764-766 (1); Gen. Hosps. of Humana, 188 Ga. App. at 826-827 (1); Mason, 174 Ga. App. at 462-463 (1); Merry, 135 Ga. App. at 708 (1). And, Georgia law is consistent with the common law rule that an oral contract may be enforceable despite the contemplation of a subsequent written contract. See Barton, 577 F2d at 1336 (applying Georgia law); Pacrim Assocs., 235 Ga. App. at 765-766 (1); Gen. Hosps. of Humana, 188 Ga. App. at 827 (1); Merry, 135 Ga. App. at 708 (1).

Turner urges this court to adopt a five-factor test utilized by other jurisdictions in determining whether an oral agreement is enforceable as a matter of law:

(1) whether there has been an express reservation of the right not to be bound in the absence of a writing; (2) whether there has been partial performance of the contract; (3)whether all of the terms of the alleged contract have been agreed upon; and (4) whether the agreement at issue is the type of contract that is usually committed to writing.

Winston v. Mediafare Entertainment Corp., 777 F2d'78, 80-81 (2d Cir. 1985). 16 Even if we were to adopt the suggested five-factor test, our conclusion in this case would be the same. Here, there was evidence that both supported and refuted the existence of a binding oral agreement, and this conflict in the evidence required the jury’s resolution. To the extent that the legal authorities relied upon by Turner contained unequivocal objective signs evincing an intent not to be bound orally, they are factually distinguishable. 17 When con *606 fronted with conflicting evidence of the parties’ intent on this issue, numerous other jurisdictions have likewise held that the question is to be left to the determination of the jury or the factfinder. See Lamle v. Mattel, Inc., 394 F3d 1355, 1359-1360 (II) (Fed. Cir. 2005); Southern Colorado MRI v. Med-Alliance, 166 F3d 1094, 1098-1100 (I) (10th Cir. 1999); Lazard Freres & Co. v. Protective Li