[Cite as FCX Performance, Inc. v. Aurorium, L.L.C., 2026-Ohio-2608.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
FCX PERFORMANCE INC., D/B/A :
PIERCE PUMP COMPANY, ET AL.,
:
Plaintiffs-Appellees,
: No. 115420
v.
:
AURORIUM, LLC,
:
Defendant-Appellant.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 9, 2026
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-25-111629
Appearances:
Lewis Brisbois Bisgaard & Smith, LLP, Ryan K. Rubin,
Daniel A. Leister, and Scott J. Pullar, for appellees.
FBT Gibbons LLP, Ryan W. Goellner, and Darren A.
Craig, pro hac vice, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant Aurorium, LLC (“Aurorium”) appeals the trial
court’s judgment entry granting summary judgment in favor of plaintiffs-appellees,
FCX Performance, Inc. d/b/a Pierce Pump Company and EADS Distribution, LLC (“FCX”) on both FCX’s complaint and Aurorium’s counterclaim. Finding no merit
to the appeal, this court affirms.
I. Procedural History
On February 7, 2025, FCX brought suit against Aurorium, asserting
claims for breach of contract, action on account, and unjust enrichment. The
complaint alleged that Aurorium breached a broad Supply Agreement (“Supply
Agreement”) that incorporated FCX’s Terms and Conditions (“FCX T&Cs”) by
failing to pay FCX for goods and services totaling $290,850.10. FCX attached the
relevant invoices to its complaint demonstrating the amount owed, all of which
originated from FCX and/or its affiliated entities depending on the products or
services purchased. The Supply Agreement was not attached to the complaint.
Aurorium responded with an answer and counterclaim. In its answer,
it admitted to certain allegations contained in Paragraphs 6, 7, 8, and 9 of FCX’s
complaint. Those complaint paragraphs provided:
6. Plaintiffs and Defendant are Parties to a Supply Agreement, and
under the terms of the same, Plaintiffs are expressly identified as a
Seller and Defendant is expressly identified as a member of a Buyers
Group defined as a consortium of entities joined together to
consolidate and centrally source purchases of products and services.
7. Following entering into the Supply Agreement, in relation to this
matter, Defendant began ordering products from Plaintiffs to be
delivered to a location at 30140 Eden Church Road, Denham Springs,
Louisiana 70726.
8. The purchase orders and invoices are reflected by the following
documents which are incorporated herein by reference:
a. Defendant’s Order Number 3644696 with Invoice Number
5039552 is attached hereto as Exhibit “A[,]”
b. Defendant’s Order Number 3633273 with Invoice Number
5046317 is attached hereto as Exhibit “B[,]”
c. Defendant’s Order Number 3633273 with Invoice Number
5065064 is attached hereto as Exhibit “C[,]”
d. Defendant’s Order Number 3832791 with Invoice Number
5101757 is attached hereto as Exhibit “D[,]”
e. Defendant’s Order Number 5163743 is attached hereto as
Exhibit “E[.]”
9. Plaintiff FCX was additionally retained via Change Order Request
to install nitrogen headers to each seal pot location. The total cost was
$44,200.00. A copy of the Change Order Request is attached hereto
as Exhibit “F.”
Although FCX did not append a copy of the Supply Agreement to the
complaint, Aurorium nonetheless admitted that it was a party to the Supply
Agreement and admitted that the terms of the Supply Agreement required payment
within “60 days” of the invoice date.1 Aurorium argued that FCX was in breach of
the agreement because it provided defective products, and thus argued that under
the Supply Agreement, they were entitled to withhold payment until receipt of
conforming products.
Aurorium counterclaimed against FCX for breach of contract and
breach of the implied covenant of good faith and fair dealing alleging “at least
$263,556.90” in damages stemming from delays caused by the defective or untimely
1 Although FCX alleges in its complaint, and Aurorium admits in its answer, that
payment was due within 60 days of the invoice, the Supply Agreement provided that “unless otherwise agreed by seller in writing, full cash payment is due within thirty [30] days after the invoice date.” The invoices attached to the complaint allowed for 60 days for payment.
products. Aurorium’s counterclaim referenced the Supply Agreement as containing
an “express and/or implied warranty.” Aurorium contended that it was damaged
because FCX (1) did not ensure that the products were timely delivered and (2)
furnished defective products. Aurorium claimed it brought these issues to FCX’s
attention and FCX either offered to provide a credit for the costs associated with the
defective products or provide new parts to cure the defective products. Aurorium
alleged that FCX’s failure to deliver functioning products in a timely matter delayed
use of a manufacturing plant and caused Aurorium to incur costs associated with
the removal, correction, and reinstallation of the defective products. Attached as
Exhibit A to its counterclaim was a demand letter sent by Aurorium to FCX on June
24, 2024, explaining and seeking redress for these alleged damages. Despite
conceding that it was a party to the Supply Agreement that contained a warranty,
Aurorium also did not attach a copy of the Supply Agreement to its counterclaim
and did not object to FCX’s failure to attach a copy of the agreement to its complaint
until after FCX filed its motion for summary judgment.
FCX’s answer to Aurorium’s counterclaim again admitted to the
existence of the Supply Agreement and admitted that “the Supply Agreement
contains a ‘Limited Warranty and Warranty Disclaimer’ within and pursuant to
[FCX T&Cs].” Despite both parties acknowledging their obligations under the
Supply Agreement, neither party provided a copy of the Supply Agreement to its
respective pleadings.
In May 2025, FCX moved for summary judgment on its complaint
and on Aurorium’s counterclaims. The motions for summary judgment argued that
Aurorium admitted that it was bound by the Supply Agreement that incorporated
FCX T&Cs. FCX provided that the following provisions within the Supply
Agreement governed the dispute:
10. LIMITED WARRANTY AND WARRANTY DISCLAIMER - The
Goods sold hereunder and/or used in connection with the services are
not manufactured by us, and as such, we make no warranty, express
or implied, concerning such Goods other than that we have good title
to such Goods and will use our reasonable commercial efforts to
obtain from each manufacturer, in accordance with the
manufacturer’s warranty, the repair or replacement of Goods that may
prove to be defective in material or workmanship. Services provided
by third party contractors are subject only to such warranties as are
extended by such third party contractors. Notwithstanding the
foregoing, to the extent we are permitted and able and so long as
Buyer has paid in full for the Goods or services subject to the warranty
claim, we will pass on and make available to you any warranties made
by the suppliers, manufacturers of such Goods or third party
contractors. For services provided directly by Seller, we warrant that
our service will be performed in accordance with applicable industry
standards prevailing at the time of performance. Our obligations
under this warranty are conditioned upon you notifying us of any
alleged breach of the foregoing warranty promptly after discovery,
and in any event not later than 90 days after substantial completion
of our services, our satisfaction upon inspection that the warranty has
been breached, and that Buyer has paid in full for the services subject
to the warranty claim. In the event of a breach of this warranty we will
correct the defective labor or workmanship at our expense or, at our
discretion, give you credit in a reasonable amount on account of the
defect, but in no event in an amount greater than the price paid of the
services hereunder. Except as stated hereinabove, Seller makes no
other warranties concerning the Goods whatsoever. SELLER
DISCLAIMS AND EXCLUDES ALL OTHER EXPRESS
WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING
WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
11. LIMITATIONS OF REMEDIES AND DAMAGES -You agree that
our obligation described in the preceding paragraph is your sole and
exclusive remedy, and that our total liability to you, your customers or
to any other person, relating to this contract, its performance or nonperformance, or from the use of Goods furnished or services provided,
is limited to the price of the Goods and/or services giving rise to the
claim. Except as to title, such obligation and liability shall terminate
at the end of the manufacturer’s warranty period for the applicable
Goods. SELLER AND ITS SUPPLIERS WILL NOT, IN ANY EVENT
BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL
OR PENAL DAMAGES INCURRED IN CONNECTION WITH THE
GOODS; WHETHER ANY CLAIM FOR RECOVERY IS BASED UPON
OR ARISES OUT OF THEORIES OF CONTRACT, NEGLIGENCE,
TORT (INCLUDING STRICT LIABILITY) OR OTHERWISE,
INCLUDING BUT NOT LIMITED TO BACK CHARGES, LABOR
COSTS, COSTS OF REMOVAL, REPLACEMENT, TESTING OR
INSTALLATION, LOSS OF USE OF THE GOODS OR ANY
ASSOCIATED PRODUCTS, DAMAGES TO ASSOCIATED
PRODUCTS, LATENESS OR DELAYS IN DELIVERY,
UNAVAILABILITY OF GOODS, COST OF CAPITAL, COST OF
SUBSTITUTE GOODS, FACILITIES OR SERVICE, DOWNTIME, OR
CLAIMS FROM YOUR CUSTOMERS OR OTHER PARTIES TO YOU
OR DIRECTLY TO US FOR SUCH DAMAGES.
In support of its motion for summary judgment on its complaint, FCX
relied on an affidavit from Scott Esparza, FCX’s Regional Vice President-South and
records custodian. His affidavit provided that “[a] true and accurate copy of the
Supply Agreement containing [FCX T&Cs] is attached as Exhibit 1.” In a separate
filing, FCX requested to file Exhibit 1 under seal, contending that it “includes
confidential and proprietary financial and business information of one of the parties
involved in this case.” The court granted this motion.
In response, Aurorium sought leave to amend its answer, arguing that
it needed to clarify that it did not intend to concede that it had entered into the
specific Supply Agreement that FCX now provided. Aurorium did not offer a copy of the version it allegedly agreed to and signed. Aurorium also opposed FCX’s
motion for summary judgment, contending that there were genuine disputes
regarding whether (1) the Supply Agreement was enforceable under the statute of
frauds, (2) the warranty within FCX T&C’s achieved its essential purpose, and (3)
the Supply Agreement /FCX T&Cs or Aurorium T&Cs govern the transactions.
Aurorium supported its opposition with and argued that its purchase
orders submitted to FCX incorporated by reference, “The Vertellus General Terms
and Conditions of Purchase” (“Aurorium T&Cs”).2 Aurorium maintained that
Aurorium T&Cs were the relevant terms and conditions that FCX was bound by
rather than FCX T&Cs that were incorporated into the Supply Agreement. Under
the Aurorium T&Cs,
Priority. Any purchase of Goods and/or Services by Buyer from
Seller is subject to the following terms and conditions: (1) any written
agreement signed by both parties regarding the Goods and/or
Services, (2) any Riders incorporated by reference or attached to the
Purchase Order, (3) all terms and conditions listed below and on the
purchase order or scheduling agreement, quantity contract or dollar
contract (hereinafter referred to as the “Purchase Order”), including
other documents incorporated by reference by Buyer on the Purchase
Order, and (4) all specifications and drawings accepted or approved
in writing by Buyer. Collectively and separately, the documents listed
above shall be referred to as the “Agreement.” Notwithstanding the
foregoing, any Seller’s terms and conditions are hereby expressly
excluded from the Agreement. Buyer’s documents or agreements
comprising the Agreement are intended to be complementary. If there
is a conflict or inconsistency between the Agreement documents, the
order set forth above shall govern such conflict inconsistency.
2 FCX also relied on an affidavit from Esparza in support of its motion for summary
judgment on Aurorium’s counterclaim, explaining that Aurorium was formerly known as Vertellus, LLC. Aurorium did not dispute this assertion. For ease of understanding, we modify all references to “Vertellus” in the respective agreements to reflect “Aurorium.” ...
Delivery; Risk of Loss. TIME IS OF THE ESSENCE. Seller
acknowledges that Buyer has strict requirements as to scheduled
delivery dates for Goods and performance dates for Services which are essential to Buyer’s business. Deliveries must be made in accordance with the requirements of the Purchase Order. Buyer is not obligated to accept early deliveries, late deliveries, partial deliveries or excess deliveries. Unless otherwise specified, all Goods shall be sold DDP Buyer’s designated facility (INCOTERMS 2010) with shipment of the Goods to commence upon Buyer’s approval. Unless otherwise agreed
to by Buyer and expressly stated on the Purchase Order, all expenses (including customs duty, taxes and other charges) and risk of loss for damage incurred in the transportation of the Goods, including loss during loading or unloading, shall be borne solely by Seller and shall not pass to Buyer until delivery of Goods and after Buyer has
inspected and accepted the Goods. If specified on the Purchase Order, the Goods shall be tendered in a single delivery. At Buyer’s request, Seller shall provide Buyer with a shipment schedule.
Representations and Warranty. Seller represents and warrants
that all Goods and Services, as the case may be, are: (a) owned by Seller or Seller has the right to transfer free and clear title to Buyer, (b) free from defects in materials, design and workmanship, (c) in good working order and condition (d) in strict conformance to the specifications, drawings or descriptions, or Samples, Instructions, performance capabilities and other standards Buyer provides to
Seller, (e) do not infringe, violate or misappropriate any patent, copyright or other intellectual property rights; and, (f) the
manufacture, production, installation, sale and use by Buyer are in compliance with any and all applicable laws, rules and regulations. Seller knows of Buyer’s intended use and expressly warrants that all Goods and Services covered by the Agreement will be fit and sufficient for the purposes intended by Buyer. Statements of Seller, or its agents in its advertising and its promotional material as to quality, grade, performance and use of the Goods and/or Services are Seller’s express warranties. All warranties survive any inspection, delivery or
acceptance of the Goods and/or Services, or payment for the Goods and/or Services delivered and such warranty shall run to Buyer,
Buyer’s customers and/or Buyer’s successors and assigns, and shall not be deemed exclusive of any other warranties, express or implied. In the event that Buyer is in any way enjoined from using the Goods or any portion thereof, Seller shall promptly, at its expense (including,
but not limited to, the payment of any royalties occasioned by the
following) either: (a) provide to Buyer non-infringing means of using
it; (b) negotiate and procure for Buyer the right to use it without
restriction; or, (c) if neither (a) nor (b) can be accomplished within a
reasonable time period, reimburse Buyer for all monies paid for it.
Seller will comply with the Supplier Code of Conduct located at
http://www.vertellus.com/supplier-code-ofconduct.
Manufacturer’s Warranties. In addition to the warranties
granted by Seller in the Agreement, if Seller is not the original
manufacturer of Goods or source of Services, Seller shall pass
through, assign, transfer and convey to Buyer all warranties related
thereto provided by the manufacturer and/ or supplier, to the extent
that Seller has the legal capacity to do so. If the manufacturer’s or
supplier’s warranties are for a period greater than Seller’s warranty to
Buyer as otherwise provided in this Agreement, then Seller shall
warrant the same to Buyer to the extent and for the duration of such
manufacturer’s or supplier’s warranty.
On July 7, 2025, the trial court denied Aurorium leave to amend its
answer. Subsequently on July 12, 2025, the trial court granted summary judgment
in favor of FCX on all claims, ordering Aurorium to pay $290,850.10 in damages.
The trial court also granted summary judgment in favor of FCX on Aurorium’s
counterclaims and thus dismissed those claims.
This appeal followed. The trial court denied Aurorium’s request to
stay the proceedings, including enforcement of the judgment, pending appeal.
II. The Appeal
Aurorium raises two assignments of error, which will be addressed
out of order for ease of discussion.
A. Leave to Amend Answer
In its second assignment of error, Aurorium contends that the trial
court abused its discretion in denying it leave to amend its answer and counterclaim
because the proposed amendments to its pleadings were not made in bad faith, not
unduly delayed, and not prejudicial to FCX. The basis for the amendment was to
“clarify” that it did not intend to concede to the specific Supply Agreement
subsequently provided by FCX in support of summary judgment.
Civ.R. 15(A), which allows for amendment of pleadings by leave of
court or by written consent of the other party after a responsive pleading has been
made, expressly provides that “[l]eave of court shall be freely given when justice so
requires.” “A motion for leave to amend should be granted absent a finding of bad
faith, undue delay, or undue prejudice to the opposing party.” Hoover v. Sumlin, 12
Ohio St.3d 1, 6 (1984).
The grant or denial of leave to amend a pleading is within the sound
discretion of the trial court. Supportive Solutions Training Academy, L.L.C. v.
Electronic Classroom of Tomorrow, 2013-Ohio-3910, ¶ 10 (8th Dist.). Accordingly,
an appellate court applies an abuse-of-discretion standard of review to a trial court’s
decision to grant or deny a party leave to amend a pleading. Wilmington Steel
Prods. Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120, 122 (1991). A court
commits an abuse of discretion by “exercising its judgment, in an unwarranted way,
in regard to a matter over which it has discretionary authority.” Johnson v.
Abdullah, 2021-Ohio-3304, ¶ 35.
In this case, Aurorium sought leave to amend its answer after FCX
moved for summary judgment in reliance on Aurorium’s admission within its
answer that it was a party to the Supply Agreement. Despite FCX’s reliance on these
admissions, Aurorium contended that FCX would not be prejudiced. We find that
waiting to change its responsive pleading until the opposing party moved for
summary judgment in reliance on the responsive pleading is prejudicial. See Natl.
City Bank v. Skipper, 2009-Ohio-5940 (9th Dist.) (A party “should not be permitted
to sit by for this period and bolster up their pleadings in answer to a motion for
summary judgment.”).
Moreover, Aurorium did not provide any arguments suggesting that
its motion was timely or indicate why the trial court should grant it leave to amend
its answer 15 days prior to the scheduled trial date. Where a motion for leave to
amend is not timely tendered and no reason is apparent to justify the delay, a trial
court does not abuse its discretion in refusing to allow the amendment. Meadors v.
Zaring Co., 38 Ohio App.3d 97, 99 (1st Dist. 1987), citing Peterson v. Teodosio, 34
Ohio St.2d 161 (1973).
Based on the foregoing, we find that the trial court did not abuse its
discretion in denying Aurorium’s motion for leave to amend its answer.
Accordingly, Aurorium’s second assignment of error is overruled.
B. Summary Judgment
Aurorium’s first assignment of error contests the court’s grant of
summary judgment in favor of FCX on both the complaint and counterclaims. We review the trial court’s judgment de novo, using the same standard that the trial
court applies under Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,
105 (1996). Accordingly, we stand in the shoes of the trial court and conduct an
independent review of the record.
1. Standard of Review
Under Civ.R. 56(C), summary judgment is appropriate when (1) there
is no genuine issue of material fact, (2) the moving party is entitled to judgment as
a matter of law, and (3) after construing the evidence most favorably to the party
against whom the motion is made, reasonable minds can only reach a conclusion
that is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio
St.3d 367, 369-370 (1998); Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327
(1977).
The moving party bears the initial burden of setting forth specific
facts that demonstrate its entitlement to summary judgment. Dresher v. Burt, 75
Ohio St.3d 280, 292-293 (1996). If the moving party fails to meet this burden,
summary judgment is not appropriate. Id. at 293. If the moving party meets this
burden, the nonmoving party has a reciprocal burden of setting forth specific facts
using evidence permitted by Civ.R. 56(C) to show that there is a genuine issue for
trial. Id. Summary judgment is appropriate if the nonmoving party fails to meet
this burden. Id.
2. FCX’s Complaint
“A cause of action for breach of contract requires the claimant to
establish the existence of a contract, the failure without legal excuse of the other
party to perform when performance is due, and damages or loss resulting from the
breach.” Lucarell v. Nationwide Mut. Ins. Co., 2018-Ohio-15, ¶ 41. Simply, to
prevail on a breach-of-contract claim, a party must prove the existence of a contract,
the party’s performance under the contract, the opposing party’s breach, and
resulting damage. Depompei v. Santabarbara, 2015-Ohio-18, ¶ 20 (8th Dist.). We
address each element in turn.
First, FCX was required to establish the existence of a contract. This
issue is critical, as there are two potential contracts governing this transaction – (1)
the Supply Agreement that incorporates FCX T&Cs, and (2) Aurorium T&Cs that
were incorporated into the purchase orders that were sent to FCX and ultimately
fulfilled.
Based on our disposition of Aurorium’s second assignment of error,
the record conclusively establishes by admission that Aurorium and FCX entered
into the Supply Agreement that expressly incorporated FCX T&Cs. See, e.g.,
Shearer v. Creekview Broadview Hts. Homeowners’ Assn., 2010-Ohio-5786, ¶ 13
(8th Dist.) (“[A]n admission in a pleading dispenses with proof and is equivalent to
proof of the fact.”). Based on Aurorium’s admission that it was a party to the written
Supply Agreement, we need not address its R.C. 1302.04(A) statute-of-frauds
defense and arguments.
In response to FCX’s summary judgment motions, Aurorium argued
against the existence of the Supply Agreement, claiming the following:
No signed contract relating to the sale is designated in the record.
Though FCX argued that a “Supply Agreement” governed the
parties[’] terms, FCX never provided a signed, authenticated copy of
the Supply Agreement for the record. . . . Instead, after the close of
discovery and one day before the dispositive motion deadline, FCX
produced a signed copy of the Supply Agreement to Aurorium. . . . But
this signed document was not authenticated, and FCX failed to make
it part of the summary judgment record.
We find that the record was properly supplemented with the signed
Supply Agreement proving that Aurorium was one of the members of the buyer’s
group that was bound by the Supply Agreement. The unsigned Supply Agreement
was initially filed with Esparza’s affidavit that confirmed its truth and accuracy. The
trial court subsequently permitted FCX to substitute the unsigned agreement with
Aurorium’s signed agreement. The executed Supply Agreement demonstrates that
Aurorium is a member of the buyer’s group. Aurorium’s arguments to the contrary
do not dispute the contents of the Supply Agreement or the parties thereto, only that
the agreement was not properly made part of the record. Aurorium’s attempt to
attack the procedural timeline and filing of the Supply Agreement is insufficient to
support its reciprocal burden under Civ.R. 56(C) of demonstrating a genuine issue
of material fact remains regarding the existence and validity of the Supply
Agreement.
We now must determine whether Aurorium T&Cs, incorporated by
its purchase orders, have any force or control over the disputed transactions. We begin by looking at the terms of the binding Supply Agreement. It pertinently
provides:
Goods and Services sold by [FCX] . . . are expressly subject to the
terms and conditions set forth below. Any different or additional
terms of conditions in buyer’s purchase order or similar
communication are objected to and shall not be binding on [FCX]
unless agreed to in writing. . . . [Aurorium’s] acceptance of shipment
or performance and/or payment for the goods or services constitutes
acceptance of the seller’s terms and conditions.
Contract interpretation is well settled in Ohio courts. The Ohio
Supreme Court has stated:
We seek primarily to give effect to the intent of the parties, and we
presume that the intent of the parties is reflected in the plain language
of the contract. Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216,
2003-Ohio-5849, 797 N.E.2d 1256, ¶ 11. As a result, if the language of
a contract is plain and unambiguous, we enforce the terms as written,
and we may not turn to evidence outside the four corners of the
contract to alter its meaning. See id.; Aultman Hosp. Assn. v.
Community Mut. Ins. Co., 46 Ohio St.3d 51, 53, 544 N.E.2d 920
(1989) (“Intentions not expressed in the writing are deemed to have
no existence and may not be shown by parol evidence”). When
considering the language of a particular contractual provision,
“[c]ommon words . . . will be given their ordinary meaning unless
manifest absurdity results or unless some other meaning is clear from
the face or overall contents of the agreement.” [Cincinnati Ins. Co. v.]
Anders, 99 Ohio St.3d 156, 2003-Ohio-3048, 789 N.E.2d 1094, at ¶
34, citing Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374
N.E.2d 146 (1978), paragraph two of the syllabus.
Beverage Holdings, L.L.C. v. 5701 Lombardo, L.L.C., 2019-Ohio-4716, ¶ 13; see also
United States Acute Care Solutions, L.L.C. v. Drs. Co. Risk Retention Group Ins.
Co., 2025-Ohio-5010, ¶ 12.3
3 R.C. 1302.05 treats the parol evidence rule more liberally than the common law
rule in this quotation. Nonetheless, that section does not apply herein because it only
Additionally, courts “must apply clear and unambiguous contract
provisions without regard to the relative advantages gained or hardships suffered by
the parties.” John R. Jurgensen Co. v. Fairborn, 2015-Ohio-5478, ¶ 14 (1st Dist.),
citing Hope Academy Broadway Campus v. White Hat Mgt., L.L.C., 2015-Ohio3716, ¶ 36. Further, it is not the court’s responsibility to rewrite a contract to provide
for a more equitable result. Foster Wheeler Enviresponse v. Franklin Cty.
Convention Facilities Auth., 78 Ohio St.3d 353, 362 (1997).
Based on plain and unambiguous terms, both FCX and Aurorium
agreed pursuant to the Supply Agreement that (1) the purchases were expressly
subject to the terms and conditions in FCX T&Cs, (2) Aurorium’s warranty terms
within its purchase order were explicitly objected to and not binding unless agreedupon in writing, and (3) both parties were thus bound by FCX T&Cs when Aurorium
accepted the goods or services.
Aurorium argued that the court should engage in a “battle of the
forms” analysis under R.C. 1302.10 to determine whether the Supply Agreement or
Aurorium T&Cs terms are controlling. Such analysis is not necessary here because
Aurorium has conceded that it is a party to the Supply Agreement that explicitly
rejects any additional terms within the buyer’s purchase order. Nonetheless, even if
we did engage in this analysis, the result is the same.
implicates agreements that are not determined to be a complete and exclusive statement of the agreement and is only relevant when extrinsic evidence is used to explain or supplement.
Aurorium used its own purchase order forms that incorporated its
own terms and conditions. Pursuant to R.C. 1302.10(A), FCX’s fulfillment of such
purchase orders would constitute acceptance. The question, however, becomes
whether the additional terms in Aurorium T&Cs have become part of the parties’
overall agreement. In these situations, R.C. 1302.10(B) provides clear guidance:
(B) The additional terms are to be construed as proposals for addition
to the contract. Between merchants, the terms become part of the
contract unless one of the following applies:
(1) The offer expressly limits acceptance to the terms of the
offer.
(2) They materially alter it.
(3) Notification of objection to them has already been given or
is given within a reasonable time after notice of them is
received.
Applying R.C. 1302.10(B), we find that Aurorium T&Cs were merely
proposals to the Supply Agreement because it tracks the provisions of R.C.
1302.10(B). Regarding subsection (B)(2), Aurorium concedes on appeal that its
terms and conditions materially alter the terms and conditions incorporated into the
Supply Agreement, particularly in relation to warranty, damages, and delay.
Regarding subsection (B)(3), the Supply Agreement, incorporating FCX T&Cs,
specifically objected to additional terms in purchase orders. Thus, if R.C. 1302.10
were applicable, we would be required to find that the terms within Aurorium T&Cs
were proposals for addition to the Supply Agreement and that FCX is not bound by
them according to the plain text of the agreement.
Finally, Aurorium has not demonstrated that FCX agreed to
Aurorium’s additional terms in writing or withdrew its objections to Aurorium
T&Cs, as required in the Supply Agreement as two methods of adding additional
terms. And Aurorium has not argued unconscionability or some other defense to
the creation of the Supply Agreement. In contrast, Aurorium has admitted that it
was a party to the Supply Agreement and has failed to provide any evidence to the
contrary. We therefore find that FCX has established that the Supply Agreement is
the final expression of the parties’ agreement and that Aurorium T&Cs did not
become part of the parties’ agreement.
We now turn to the second element of a breach-of-contract claim —
“the failure without legal excuse of the other party to perform when performance is
due.” Under this prong, FCX was required to demonstrate that Aurorium was in
breach of the Supply Agreement.
FCX argued that the Supply Agreement provided that payment was
due within 30 days of the invoice date and Aurorium admitted that it had not paid
FCX for the goods and/or services relevant to the invoices provided. In
interrogatory No. 12, Aurorium admitted to withholding payment, relying on its
T&Cs that they claimed governed this dispute. Aurorium explained that payment
was withheld for certain products “because they were defective or otherwise delayed
in its delivery in violation of the parties’ agreement.” But under the Supply
Agreement Aurorium was not permitted to withhold payment, let alone the entirety
of the amounts due when only a fraction of the products were unacceptable.
Aurorium defended its actions, arguing that it was not required to pay
for the delayed and defective products even if the Supply Agreement was the
controlling document. It argued that if the Supply Agreement governed the instant
transactions, an issue of material fact remained regarding whether “the limited
remedies provision therein fails of its essential purpose.”
In support, Aurorium directs us to R.C. 1302.93. Under subsection
(A)(1), “The agreement may . . . limit or alter the measure of damages recoverable
under [the agreements] sections, as by limiting the buyer’s remedies to return of the
goods and repayment of the price or to repair and replacement of nonconforming
goods or parts.” Subsection (A)(2) provides that the parties “[r]esort to a remedy as
provided is optional unless the remedy is expressly agreed to be exclusive, in which
case it is the sole remedy.” Aurorium relies on subsection (B), however, that
provides: “Where circumstances cause an exclusive or limited remedy to fail of its
essential purpose, remedy may be had [under the U.C.C.].”
Paragraph 10 of the Supply Agreement provides the “sole and
exclusive remedy,” which includes repair and replacement warranties. Repair and
replacement remedies “give the seller an opportunity to make the goods conforming
while limiting the risks to which he is subject by excluding direct and consequential
damages that might otherwise arise.” Chemtrol Adhesives v. Am. Mfrs. Mut. Ins.
Co., 42 Ohio St.3d 40, 56 (1989). Further, limited remedies generally fail only where
the seller is unable or unwilling to make repair or replacements within a reasonable time. Id. Ohio law provides that the determination of whether a warranty has failed
to fulfill its essential purpose is ordinarily a question of fact for the jury. Id.
However, in this case, Aurorium admitted that FCX replaced all
defective or nonconforming products. Within its counterclaim, Aurorium
specifically admitted that “[FCX] offered to issue Aurorium with a credit for the costs
associated with the defective devices” and “[FCX] furnished new parts to
accommodate the defective pumps.” These admissions apply to all of the items
ordered under the invoices and all of the items that Aurorium contended were
defective. With this admission, there remains no genuine issue of material fact and
thus FCX’s exclusive remedy did not fail of its essential purpose. Moreover, in
interrogatory No. 12, Aurorium further admitted to withholding payment solely
relying on Aurorium T&Cs that they contended govern this dispute. It explained
that payment was withheld for certain products “because they were defective or
otherwise delayed in their delivery in violation of the parties’ agreement.” As we
have established, however, Aurorium T&Cs were not made part of the Supply
Agreement. Accordingly, Aurorium’s arguments do not persuade this court that the
remedy within the Supply Agreement failed to fulfill its essential purpose.
We therefore find that FCX demonstrated as a matter of law that
Aurorium did not perform under the contract and Aurorium has not satisfied its
reciprocal burden of presenting a recognized defense for nonperformance under the
contract to render summary judgment in favor of FCX improper on this issue.
The third and final element of FCX’s breach-of-contract claim
required FCX to prove its damages resulting from the breach. Aurorium did not
dispute the invoice amounts, admitted in its answer to the authenticity of the
invoices contained in the complaint, and further admitted that it did not pay any
money owed on its account. This element is easily satisfied.
Based on the foregoing, we find that the trial court did not err in
granting summary judgment in favor of FCX on its complaint.4
3. Aurorium’s Counterclaim
Within this assignment of error, Aurorium also challenges the trial
court’s decision granting summary judgment in favor of FCX on Aurorium’s
counterclaim for breach of contract that was premised on receiving defective goods
and breach of various warranties, including that FCX’s limited warranty failed of its
essential purpose. This issue has been addressed and rejected.
Moreover, Aurorium’s counterclaim sought only consequential
damages, including delay in use, installation costs, travel expenses, maintenance,
third-party construction costs, and engineering costs. These damages were not
recoverable under Section 11 of FCX T&Cs. Under the Supply Agreement, total
liability is limited to “the price of Goods and/or services giving rise to the claim,”
and damages relating to “special, incidental, consequential, or penal damages” are
4 “Ohio law does not permit recovery under the theory of unjust enrichment when
an express contract covers the same subject.” Digitalight Sys. v. Cleveland Clinic Found., 2022-Ohio-1400, ¶ 65 (8th Dist.). Having found summary judgment proper on FCX’s breach-of-contract claim, it cannot recover under its unjust-enrichment claim. specifically excluded, including “labor costs, costs of removal, replacement, testing
or installation, loss of use of the goods or any associated products, damages to
associated products, lateness or delays in delivery, unavailability of goods, cost of
capital, cost of substitute goods, facilities or service, downtime, or claims from your
customers . . . .” By its own terms, the Supply Agreement did not allow Aurorium to
recover consequential damages such as those caused by delay or defects since it
explicitly and conspicuously disclaimed all warranties. See also R.C. 1302.93(C)
(limiting and excluding consequential damages unless the limitations or exclusions
are unconscionable).
Finally, Aurorium contends that FCX withheld credits that it offered
for defective products and that it had withheld an order. The plain language of
Sections 6 and 10 of FCX T&Cs, as incorporated into the Supply Agreement, allowed
for the withholding of credits and future orders if Aurorium was in breach of the
Supply Agreement. Once Aurorium’s account became delinquent because it had not
paid any amounts owed, FCX was not contractually obligated to provide Aurorium
any further goods or services, or fill any of Aurorium’s pending or future orders.
Even construing all the evidence favorable to Aurorium, the
nonmoving party, we find that FCX satisfied its burden that no genuine issue of
material fact remained on Aurorium’s counterclaim and that it was entitled to
judgment as a matter of law. Accordingly, the trial court did not err in also granting
summary judgment in favor of FCX on Aurorium’s counterclaim.
Aurorium’s first assignment of error is overruled.
Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
EMANUELLA D. GROVES, P.J., and
ANITA LASTER MAYS, J., CONCUR