[Cite as H & C Ag Servs., L.L.C. v. Ohio Fresh Eggs, L.L.C., 2015-Ohio-3714.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HARDIN COUNTY


H & C AG SERVICES, LLC, d.b.a.
LANDTECH CO.,

        PLAINTIFF-APPELLEE/                                        CASE NO. 6-15-02
        CROSS-APPELLANT,

        v.

OHIO FRESH EGGS, LLC, ET AL.,                                      OPINION

        DEFENDANTS-APPELLANTS/
        CROSS-APPELLEES.



                 Appeal from Hardin County Common Pleas Court
                          Trial Court No. 20131139 CVG

                       Judgment Reversed and Cause Remanded

                         Date of Decision: September 14, 2015



APPEARANCES:

        John C. Albert for Appellant/Cross-Appellee, Ohio Fresh Eggs, LLC

        Douglas R. Cole for Appellant/Cross-Appellee,
                Trillium Farm Holdings, LLC

        Terrence G. Stolly for Appellee/Cross-Appellant
Case No. 6-15-03



       {¶1} Defendants-appellants/cross-appellees,    Ohio   Fresh    Eggs,   LLC

(“OFE”) and Trillium Farm Holdings, LLC (“Trillium”), appeal the November 12,

2014 and January 20, 2015 judgment entries of the Hardin County Court of

Common Pleas entering judgment on the jury’s verdict and denying their motions

for judgment notwithstanding the verdict following a jury trial, respectively.

Plaintiff-appellee/cross-appellant, H & C Ag Services, LLC, d.b.a. LandTech Co.

(“LandTech”), appeals the January 20, 2015 judgment entries of the Hardin

County Court of Common Pleas denying LandTech’s motion for judgment

notwithstanding the verdict and denying its motion to certify the judgment as a

joint and several, total damage award. For the reasons that follow, we reverse.

       {¶2} This case stems from a dispute concerning the rights to remove

chicken manure from egg-laying facilities in Hardin County, Ohio. (See Doc. No.

17).   After initially filing a complaint on August 23, 2013, LandTech, on

September 27, 2013 and with leave of court, filed its first amended complaint.

(Doc. Nos. 1, 17). In its first amended complaint, LandTech asserted a total of ten

counts. Four counts were against both OFE and Trillium: Count One of breach of

a July 1, 2006 written contract titled, “Ohio Fresh Eggs, LLC Contractor

Outsourcing Agreement” (the “Agreement”); Count Three of breach of a contract

for manure brokering; Count Four of breach of a “2012 Manure Implied-in-Fact

Contract”; and Count Five of promissory estoppel.        (Doc. No. 17).    Against

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Trillium only, LandTech asserted five counts: Count Two of “Breach of 2011

Implied in Fact Contract”; Count Six of tortious interference with contractual

relations; Count Seven of tortious interference with business relations; Count

Eight of negligent misrepresentation; and Count Nine of fraud. (Id.). Against

OFE only, LandTech asserted Count Ten of respondeat superior. (Id.).

       {¶3} On October 1, 2013, LandTech filed a motion for an ex parte

temporary restraining order and a preliminary injunction. (Doc. No. 20).

       {¶4} On October 2, 2013, OFE filed its answer, and Trillium filed its

answer and counterclaim. (Doc. Nos. 29, 21). Trillium’s counterclaim against

LandTech included: Count One of declaratory judgment; Count Two of tortious

interference with contractual relationship; and Count Three of tortious interference

with business relations. (Doc. No. 21). Also on October 2, 2013, Trillium filed a

memorandum in opposition to LandTech’s motion for an ex parte temporary

restraining order and a preliminary injunction. (Doc. No. 24).

       {¶5} The trial court denied LandTech’s ex parte motion for a temporary

restraining order, but it held a hearing on October 3, 2013 concerning LandTech’s

request for a preliminary injunction. (Doc. No. 31); (Oct. 3, 2013 Tr. at 2). On

October 14, 2013, the trial court filed an entry denying LandTech’s motion for a

preliminary injunction. (Doc. No. 36).




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      {¶6} On October 16, 2013, LandTech filed a reply to Trillium’s

counterclaim. (Doc. No. 37).

      {¶7} On August 28, 2014, Trillium and OFE each filed a motion for

summary judgment on all of the counts against each in LandTech’s first amended

complaint. (Doc. Nos. 93, 94).

      {¶8} On September 11, 2014, LandTech filed a notice of voluntary

dismissal of Counts Two through Ten of its first amended complaint, leaving only

Count One.    (Doc. No. 95).     That same day, LandTech filed a combined

memorandum in opposition to Trillium’s and OFE’s motions for summary

judgment. (Doc. No. 96).

      {¶9} On September 18 and 19, 2014, Trillium and OFE, respectively, each

filed a reply memorandum in support of its motion for summary judgment. (Doc.

Nos. 103, 104).

      {¶10} On September 29 and 30, 2014, Trillium and OFE, respectively, each

filed a “motion for summary judgment on damages.” (Doc. Nos. 106, 110).

      {¶11} On October 3, 2014, the trial court denied all of Trillium’s and

OFE’s motions for summary judgment, concluding that genuine issues of material

fact remained. (Doc. No. 111).

      {¶12} The case was tried to a jury on October 29, 30, and 31, 2014. (See

Doc. No. 160). At the outset of the trial, Trillium dismissed Counts Two and


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Three of its counterclaim, leaving only Count One for declaratory judgment.

(Trial Tr., Vol. I, at 70). During the trial, Trillium and OFE made motions for a

directed verdict under Civ.R. 50, which the trial court denied. (See Doc. Nos. 142,

160).   At the conclusion of the trial, the jury returned a verdict in favor of

LandTech and against OFE in the amount of $2,584,846.50 and against Trillium in

the amount of $2,584,846.50. (Trial Tr., Vol. VII, at 157-161); (Doc. No. 145).

        {¶13} On November 12, 2014, the trial court filed a judgment entry on the

jury’s verdict granting judgment in favor of LandTech and against OFE in the

amount of $2,584,846.50, and judgment in favor of LandTech and against Trillium

in the amount of $2,584,846.50. (Doc. No. 160). The trial court also “denied”

Trillium’s counterclaim for declaratory judgment. (Id.).

        {¶14} On December 1, 2014, Trillium filed a motion for judgment

notwithstanding the verdict. (Doc. No. 166).

        {¶15} On December 10, 2014, OFE filed a motion for judgment

notwithstanding the verdict or, alternatively, for a new trial. (Doc. No. 175).

        {¶16} On December 10, 2014, LandTech filed a motion for certification of

the judgment. (Doc. No. 176). In that motion, LandTech requested that the trial

court certify the judgment as a joint and several, total damage award of $5,169,693

against OFE and Trillium. (Id.).




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       {¶17} Also on December 10, 2014, LandTech filed a motion for judgment

notwithstanding the verdict. (Doc. No. 177).

       {¶18} On December 15, 2014, LandTech filed a memorandum in

opposition to Trillium’s motion for judgment notwithstanding the verdict. (Doc.

No. 179).

       {¶19} On December 23, 2014, Trillium filed memorandums in opposition

to LandTech’s motions for judgment notwithstanding the verdict and to certify the

judgment. (Doc. Nos. 182, 183). Trillium also filed a reply memorandum in

support of its motion for judgment notwithstanding the verdict. (Doc. No. 184).

       {¶20} On December 23, 2014, LandTech filed a memorandum in

opposition to OFE’s motion for judgment notwithstanding the verdict or,

alternatively, for a new trial. (Doc. No. 185).

       {¶21} On December 23, 2014, OFE filed a memorandum in opposition to

LandTech’s motions for judgment notwithstanding the verdict and to certify the

judgment. (Doc. No. 186).

       {¶22} On December 30, 2014, LandTech filed a reply memorandum in

support of its motions for judgment notwithstanding the verdict and to certify the

judgment. (Doc. No. 187).




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        {¶23} On December 30, 2014, OFE filed a reply memorandum in support

of its motion for judgment notwithstanding the verdict or, alternatively, for a new

trial. (Doc. No. 189).

        {¶24} On January 20, 2015, the trial court filed an entry denying Trillium’s,

LandTech’s, and OFE’s motions for judgment notwithstanding the verdict and

OFE’s alternative request for a new trial. (Doc. No. 190). The trial court also

filed an entry denying LandTech’s motion to certify the judgment. (Doc. No.

192).

        {¶25} OFE and Trillium filed their notices of appeal on February 18, 2015.

(Doc. Nos. 202, 199). LandTech filed its notice of cross-appeal on March 2, 2015.

(Doc. No. 205). OFE raises seven assignments of error, Trillium raises five

assignments of error, and LandTech raises two assignments of error. Because they

are dispositive, we address only OFE’s and Trillium’s first assignments of error

together.

                         OFE’s Assignment of Error No. I

        The trial court erred in denying Ohio Fresh Eggs judgment as a
        matter of law because the agreement between Ohio Fresh Eggs
        and plaintiff LandTech expressly left open the quantity of
        manure that Ohio Fresh Eggs was to provide and therefore did
        not create an enforceable contract as a matter of law. (App. at
        B16)




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                     Trillium’s Assignment of Error No. I

      The trial court erred in denying Trillium’s JNOV motion, and
      the jury’s verdict is against the manifest weight of the evidence,
      because the 2006 Agreement was an unenforceable “agreement
      to agree,” or, alternatively, an unenforceable illusory
      requirements contract that failed to provide any requisite
      conditions or circumstances from which the quantities involved
      in the contract could be approximated. (See Order Denying
      JNOV at 2; Trial Transcript, Vol. VIII at 157-161; Jury Verdict
      Form And Interrogatories).

      {¶26} In its first assignment of error, OFE argues that, because the

Agreement lacks a quantity term and is not a requirements contract, it is

unenforceable, and the trial court erred by denying its motion for summary

judgment and its motion for judgment notwithstanding the verdict. Trillium, in its

first assignment of error, similarly argues that, for the same reasons OFE offers,

the trial court erred by denying its motion for judgment notwithstanding the

verdict. In response, LandTech argues that the Agreement provides a quantity

term or, in the alternative, is a requirements contract. We agree with OFE and

Trillium. This case never should have gone to trial.

      {¶27} The relevant portions of the Agreement are as follows. Paragraph 3

of the Agreement, titled “Service Fees,” provides, “Subject to the terms and

conditions of this agreement, Bidder agrees to pay OFE for the transfer of manure

ownership under the conditions set forth in Appendix ‘A & B.’” (Joint Trial Ex.

1). Paragraph D of Appendix A provides, “Tonnage of the manure removed will


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be tracked and billed according to the quantities listed on the ‘OFE – Manure

Management Manifest.’” (Id.). Paragraph 3 of Appendix B provides, “Quantity.

On tonnage per year, Bidder proposes to broker all available tonnage per year of

manure. Specific quantity to be determined by and mutually agreeable [sic] both

parties.” (Id.). Later, under the heading “Agreement,” Appendix B provides,

“Bidder agrees to be bound by agreements if Ohio Fresh Eggs, LLC accepts the

above-fulfilled proposal.” (Id.). Underneath that “Agreement” section, there are

executed signature lines for “Land Tech” under “Contractor Signature” and for

“Ohio Fresh Eggs, LLC” under “OFE Proposal Acceptance.” (Id.).

       {¶28} In denying LandTech’s motion for a preliminary injunction, the trial

court concluded that LandTech did not prove by clear and convincing evidence

that it was substantially likely to prevail on the merits of its underlying substantive

claim because “the Court cannot find any written provision in the written contract

dated July 1st, 2006 requiring Trillium or OFE to provide to LandTech all, or any

specific amount of chicken manure/litter.” (Doc. No. 36 at 5). In its findings

preceding this conclusion, the trial court elaborated, “A careful reading of the

original agreement and both Appendix A and B, reveals no provision stating the

quantity of chicken manure/litter to be provided by OFE to LandTech.”

(Emphasis sic.) (Id. at 3).




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       {¶29} Later in the case, Trillium and OFE argued in their motions for

summary judgment that they were entitled to judgment as a matter of law because,

among other reasons, the Agreement is unenforceable because it lacks a quantity

term. (Doc. No. 93 at 11-13); (Doc. No. 94 at 4). In response to Trillium’s and

OFE’s motions for summary judgment, LandTech voluntarily dismissed all but

one count of its first amended complaint: breach of the Agreement. (Doc. No.

95); (Doc. No. 17).     In its entry denying Trillium’s and OFE’s motions for

summary judgment, the trial court analyzed several issues in the case; however, it

did not analyze whether the Agreement contained a quantity term sufficient to

make the Agreement enforceable. The case proceeded to trial, and the trial court

denied Trillium’s and OFE’s motions for judgment notwithstanding the verdict

after the jury returned a verdict in favor of LandTech.

       {¶30} We review de novo a trial court’s decision to deny summary

judgment. Heider v. Siemens, 3d Dist. Allen No. 1-10-66, 2011-Ohio-901, ¶ 30,

citing Wampler v. Higgins, 93 Ohio St.3d 111, 127 (2001). Summary judgment is

proper where there is no genuine issue of material fact, the moving party is

entitled to judgment as a matter of law, and reasonable minds can reach but one

conclusion when viewing the evidence in favor of the non-moving party, and the

conclusion is adverse to the non-moving party. Civ.R. 56(C); State ex rel. Cassels

v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).


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       {¶31} We also review de novo a trial court’s decision to grant or deny a

Civ.R. 50(B) motion for judgment notwithstanding the verdict (“JNOV”). First

Fed. Bank of Ohio v. Angelini, 3d Dist. Crawford No. 3-11-11, 2012-Ohio-2137, ¶

8, citing Osler v. Lorain, 28 Ohio St.3d 345, 347 (1986). “A JNOV is proper if

upon viewing the evidence in a light most favorable to the nonmoving party and

presuming any doubt to favor the nonmoving party, reasonable minds could come

to but one conclusion, that being in favor of the moving party.” Id., citing Civ.R.

50(B) and Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d

512, 2002-Ohio-2842, ¶ 3. “Such a decision does not determine factual issues, but

only questions of law, even though it is necessary to review and consider the

evidence in deciding the motion.” Id., citing Goodyear Tire & Rubber Co. at ¶ 4.

“‘Neither the weight of the evidence nor the credibility of the witnesses is for the

court’s determination in ruling upon [JNOV].’” Id., quoting Osler at 347.

       {¶32} The first question we must answer in addressing OFE’s and

Trillium’s first assignments of error is whether the Agreement is an agreement for

the sale of services, and governed by common law, or for the sale of goods, and

governed by the chapter of the Ohio Uniform Commercial Code (“UCC”)

addressing sales, R.C. Chapter 1302. See Tubelite Co., Inc. v. Original Sign

Studio, Inc., 176 Ohio App.3d 241, 2008-Ohio-1905, ¶ 12 (10th Dist.). LandTech

argues that the Agreement is for the sale of services—namely, “manure removal


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services.” (LandTech’s Brief at 13). OFE and Trillium argue that the Agreement

is for the sale of goods—namely, chicken manure.            We conclude that the

Agreement is governed by the UCC because it is a contract for the sale of goods.

       {¶33} R.C. 1302.01(A)(8) provides, “‘Goods’ means all things (including

specially manufactured goods) which are movable at the time of identification to

the contract for sale other than the money in which the price is to be paid,

investment securities, and things in action.” See Mueller v. All-Temp Refrig., Inc.,

3d Dist. Van Wert No. 15-13-08, 2014-Ohio-2718, ¶ 33. When a transaction

involves only the sale of goods, as defined in R.C. 1302.01(A)(8), a court can

conclude, without further inquiry, that the case is governed by the UCC. See

Tubelite Co. at ¶ 12 (concluding that the UCC governed a transaction for the sale

of “signage materials”); Shelly Materials, Inc. v. Great Lakes Crushing, Ltd., 11th

Dist. Portage No. 2013-P-0016, 2013-Ohio-5654, ¶ 36 (concluding that the UCC

governed a transaction for the sale of “ready-mix concrete”).

       {¶34} Sometimes, however, contracts involve the transaction of goods and

services. In that scenario, the “predominant factor” test is used to determine

whether R.C. Chapter 1302 is applicable. Mueller v. All-Temp Refrig., Inc., 3d

Dist. Van Wert No. 15-13-08, 2014-Ohio-2718, ¶ 34, citing Urban Industries of

Ohio, Inc. v. Tectum, Inc., 81 Ohio App.3d 768, 773-774 (3d Dist.1992). Under

the predominant-factor test, “[T]he test for the inclusion in or the exclusion from


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sales provisions is whether the predominant factor and purpose of the contract is

the rendition of service, with goods incidentally involved, or whether the contract

is for the sale of goods, with labor incidentally involved.” Id., citing Allied Indus.

Serv. Corp. v. Kasle Iron & Metals, Inc., 62 Ohio App.2d 144, 147 (6th

Dist.1977). “Put more simply, the question is whether ‘the purchaser’s ultimate

goal is to acquire a product or procure a service.’” Id., quoting Mecanique C.N.C.,

Inc. v. Durr Environmental, Inc., 304 F.Supp.2d 971, 977 (S.D.Ohio 2004).

       {¶35} Normally, the “predominate purpose” of a contract involving the

transaction of goods and services is a factual question for a jury. Allied Erecting

& Dismantling Co. v. Ohio Edison Co., 7th Dist. Mahoning No. 13 MA 40, 2015-

Ohio-2328, ¶ 13, citing RPC Elec., Inc. v. Wintronics, Inc., 8th Dist. Cuyahoga

No. 97511, 2012-Ohio-1202, ¶ 16. See also Mueller at ¶ 35. “However, Ohio

courts have held that an exception to this principle exists when there are no

disputed facts as to the predominant purpose of the contract.” Allied Erecting &

Dismantling Co. at ¶ 16, citing Valleaire Golf Club, Inc. v. Conrad, 9th Dist.

Medina No. 03CA0006-M, 2003-Ohio-6575, ¶ 7. “Where * * * there are no

disputed facts that raise issues to be decided by the jury, it is proper for the trial

court to rule as a matter of law on whether the contract is covered by [the UCC].”

(Emphasis deleted.) Valleaire Golf Club, Inc. at ¶ 6, citing Wooster Products, Inc.

v. Magna-Tek, Inc., 9th Dist. Wayne No. 2462, 1990 WL 51973 (Apr. 25, 1990).


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       {¶36} In this case, notwithstanding the Agreement’s references to “manure

brokering services,” the Agreement provides, “[LandTech] agrees to pay OFE for

the transfer of manure ownership.” (Joint Trial Ex. 1). In other words, LandTech,

the purchaser, agreed to pay OFE, the seller, for manure. Manure is “movable at

the time of identification to the contract for sale” and therefore a “good” under

R.C. 1302.01(A)(8). The Agreement makes LandTech responsible for the removal

of the manure; however, the purchaser, LandTech, bargained for no service to be

provided by OFE under the Agreement. Indeed, LandTech requested, and was

awarded by the jury, damages for lost profits, which were measured by

LandTech’s inability to acquire, then resell and spread manure. Accordingly, the

Agreement is one purely for the sale of manure, a good.

       {¶37} Even assuming the Agreement is for the sale of goods and services,

the “question is whether ‘the purchaser’s ultimate goal is to acquire a product or

procure a service.’”    (Emphasis added.)      Mueller, 2014-Ohio-2718, at ¶ 34,

quoting Mecanique C.N.C., Inc., 304 F.Supp.2d at 977. It appears that the trial

court and LandTech confuse the seller and the purchaser under the Agreement. In

fact, the trial court submitted the following interrogatory to the jury: “Do you find

by the preponderance of the evidence that the primary purpose of the 2006

Contract was: * * * for manure brokering services? OR for the purchase of




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manure?” (Interrogatory No. 10, Doc. No. 156). The jury checked the line next to

“for manure brokering services.” (Id.).

       {¶38} The trial court should not have submitted this question to the jury

because no disputed facts made this question one for the jury. Specifically, there

were no disputed facts that raised an issue to be decided by the jury concerning the

predominant purpose of the Agreement.            That is, there is no dispute that

LandTech, the purchaser, did not bargain for any service to be performed by OFE,

the seller. Rather, LandTech bargained only for the purchase of manure from

OFE.    This is perhaps why LandTech spends only a few lines in its brief

addressing this issue. (LandTech’s Brief at 13). For the reasons above, we

conclude that the Agreement is one for the sale of goods and governed by the

UCC.

       {¶39} “Unlike the common law, the Ohio Uniform Commercial Code does

not require that all essential terms of a contract be definite in order for the contract

to be enforceable.” Tubelite Co., Inc., 176 Ohio App.3d 241, 2008-Ohio-1905, at

¶ 20, citing 2 Anderson, Uniform Commercial Code, Section 2-204:210, at 477 (3d

Ed.1997). “However, in the absence of some basic terms—such as the description

and quantity of the goods—a contract may not exist.” Id., citing 1 Hawkland,

Uniform Commercial Code Series, Section 2-204:3 (2001). “Quantity is generally

the only term that is required for contract formation.” H & M Landscaping Co.,


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Inc. v. Abraxus Salt, L.L.C., 8th Dist. Cuyahoga No. 94268, 2010-Ohio-4138, ¶ 12,

citing Official Comment One to R.C. 1302.04 (“The only term which must appear

is the quantity term which need not be accurately stated but recovery is limited to

the amount stated. * * * Only three definite and invariable requirements as to the

memorandum are made by this subsection. * * * [T]hird, it must specify a

quantity.”). “‘[T]herefore, if a contract lacks a quantity term, it * * * runs afoul of

the Statute of Frauds and is not enforceable.’”1 Id., quoting Orchard Group, Inc.

v. Konica Med. Corp., 135 F.3d 421, 428 (6th Cir.1998).

         {¶40} The UCC allows parties to a contract, rather than specifying a

quantity, to measure the quantity of goods by the good-faith output of the seller or

the good-faith requirements of the buyer:

         A term which measures the quantity by the output of the seller or the

         requirements of the buyer means such actual output or requirements as may

         occur in good faith, except that no quantity unreasonably disproportionate

         to any stated estimate or in the absence of a stated estimate to any normal

         or otherwise comparable prior output or requirements may be tendered or

         demanded.

R.C. 1302.19(A).           See also NSK Industries, Inc. v. Bayloff Stamped Prods.

Kinsman, Inc., 9th Dist. Summit No. 24777, 2010-Ohio-1171, ¶ 23. The Supreme

1
 “R.C. 1302.04, Ohio’s codified statute of frauds, requires a written agreement if a contract for the sale of
goods is for an amount greater than $500.” H & M Landscaping Co., Inc. at ¶ 12, fn. 1.


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Court of Ohio “defined a requirements contract as follows: A contract in writing

whereby one agrees to buy, for sufficient consideration, all the merchandise of a

designated type which the buyer may require for use in his own established

business.” (Emphasis deleted.) Jackson Tube Serv., Inc. v. Camaco LLC, 2d Dist.

Miami Nos. 2012 CA 19 and 2012 CA 25, 2013-Ohio-2344, ¶ 12, citing Fuchs v.

United Motor Stage Co., 135 Ohio St. 509 (1939), paragraph two of the syllabus.

See also H & M Landscaping Co., Inc. at ¶ 13, quoting Black’s Law Dictionary

(8th Ed.2004) and citing R.C. 1302.19(A). “A requirements contract has further

been defined as a contract in writing where one party promises to buy exclusively,

and the other party agrees to deliver specific goods or services which the buyer

may need for a certain period of time.” Jackson Tube Serv., Inc. at ¶ 13, citing

Bass, Hurwitz & Poliner, CPA’s v. State, 10th Dist. Franklin Nos. 88AP-1120 and

89AP-16, 1989 WL 87078 (Aug. 3, 1989). Ohio courts have held that, under

Ohio’s UCC, exclusivity is a necessary component of a requirements contract. See

H & M Landscaping Co., Inc. at ¶ 17-18, citing Orchard Group, Inc. at 429;

Jackson Tube Serv., Inc. at ¶ 17.

       {¶41} LandTech advances two arguments as to why the Agreement is

enforceable. First, it argues that the Agreement provides a sufficient quantity

term—“all available tonnage per year of manure.” (LandTech’s Brief at 13-16).




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Second, it argues alternatively that the Agreement is a requirements contract. (Id.

at 16-18). We will address the arguments in reverse order.

       {¶42} The Agreement is not a requirements contract for multiple reasons.

As an initial matter, it appears that LandTech once again confuses the seller and

the buyer under the Agreement.       That is, under a requirements contract, the

quantity term is measured by the good-faith requirements of the buyer. Here, if

anything, the Agreement is for the sale of the output of manure—“all available

tonnage per year of manure”—not the manure requirements of LandTech. In other

words, the amount of manure “available” would be dictated by OFE, the seller, not

by LandTech, the buyer. Therefore, if anything, the Agreement would be an

output contract, not a requirements contract.

       {¶43} At any rate, the Agreement is not an output or a requirements

contract. First, and most significantly, to treat the Agreement as an output or a

requirements contract would be to ignore the sentence of the Agreement following

the “all available tonnage per year of manure” sentence. That sentence provides,

“Specific quantity to be determined by and mutually agreeable [sic] both parties.”

(Joint Trial Ex. 1). The quantity term of an output or a requirements contract is

not measured by a specific quantity mutually agreeable to the parties. Rather, as

we explained above, the quantity under an output or a requirements contract is

measured by the good-faith output of the seller or the good-faith requirements of


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the buyer, respectively. Therefore, the plain language of Appendix B’s “Quantity”

paragraph indicates that the quantity measure was not to be supplied by either the

good-faith output of the seller or the good-faith requirements of the buyer.

       {¶44} Second, the Agreement lacks the exclusivity required under an

output or a requirements contract. Nothing in the language of the Agreement

suggests exclusivity. See H & M Landscaping Co., Inc., 2010-Ohio-4138, at ¶ 17-

18, citing Orchard Group, Inc., 135 F.3d at 429 (“There is nothing in the language

itself on its fac[e] which even remotely suggests exclusivity.”); Jackson Tube

Serv., Inc., 2013-Ohio-2344, at ¶ 17. Under the language that the parties chose in

the Agreement, nothing under the Agreement would, in the case of an output

contract, preclude OFE from selling manure to another party or, in the case of a

requirements contract, preclude LandTech from purchasing manure from another

company. See Jackson Tube Serv., Inc. at ¶ 17 (“JTS was free to sell steel tubing

products to any other buyer during the term of the * * * contracts. Conversely,

Camaco was free to buy steel tubing products from any other seller during the

term of either contract.”); Fuchs, 135 Ohio St. 509, at paragraph two of the

syllabus (stating that in a requirements contract, “one agrees to buy * * * all the

merchandise of a designated type which the buyer may require for use in his own

established business”    (Emphasis added.)).    Indeed, in the case of an output

contract, the phrase “all available tonnage per year of manure” could mean “all


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available tonnage per year of manure” after OFE sells manure to another party or

parties, or after it uses some of the manure for its own purposes. Because nothing

in the Agreement—including the phrase “all available tonnage per year of

manure”—suggests, even impliedly, an exclusive relationship, parol evidence is

inadmissible to allow post-litigation revision of the Agreement. Orchard Group,

Inc. at 429-430 (“[P]arole [sic] evidence is only admissible when the contract

language is itself ambiguous as to its terms. * * * Here, there is simply no

ambiguity. The * * * letter is not unclear; it simply does not suggest, even

impliedly, an exclusive relationship.”), citing Thomas J. Kline, Inc. v. Lorillard,

Inc., 878 F.2d 791, 794 (4th Cir.1989).       Therefore, the Agreement lacks the

exclusivity required to be an output or a requirements contract. For all of these

reasons, the Agreement is not an output or a requirements contract.

      {¶45} Alternatively, LandTech argues that the Agreement provides a

sufficient quantity term—“all available tonnage per year of manure.” As we

discussed above, a quantity term is essential to a contract for the sale of goods

under Ohio’s UCC. LandTech’s argument might be persuasive if not for the next

sentence of the Agreement: “Specific quantity to be determined by and mutually

agreeable [sic] both parties.”   (Joint Trial Ex. 1).    Reading these sentences

together, it is clear that the parties bargained to reserve quantity—an essential

element of a contract for the sale of goods—for the future agreement of both


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parties following future negotiations. Under the Agreement, each party reserves

an unlimited right to agree to the specific quantity of manure. It follows that, if

one of the parties refuses to agree to the specific quantity of manure, that party has

no obligation to, in OFE’s case, sell manure, or, in LandTech’s case, purchase

manure. See Simon Property Group, L.P. v. Kill, 3d Dist. Allen No. 1-09-30,

2010-Ohio-1492, ¶ 49 (“An agreement is illusory where ‘by its terms the promisor

retains an unlimited right to determine the nature or extent of his performance; the

unlimited right, in effect, destroys his promise and thus makes it merely

illusory.’”), quoting Imbrogno v. Mimrx.com, Inc., 10th Dist. Franklin No. 03AP-

345, 2003-Ohio-6108, ¶ 8, citing Century 21 v. McIntyre, 68 Ohio App.2d 126 (1st

Dist.1980). See also Arrotin Plastic Materials of Indiana v. Wilmington Paper

Corp., 865 N.E.2d 1039, 1042 (Ind.App.2007) (concluding that an agreement for

the sale of goods was illusory and unenforceable due to an indefinite quantity

term).     In short, the “mutually agreeable [sic] both parties” clause in the

Agreement allows each party to determine the nature and extent of its

performance, leaving the Agreement without an enforceable quantity term.

         {¶46} To argue that the parties agreed to a quantity term of “all available

tonnage per year of manure” ignores a legally operative sentence of the

Agreement.      In other words, if the parties agreed to a quantity term of “all

available tonnage per year of manure,” as LandTech argues, then there would be


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no need for future agreement concerning quantity. The parties would simply track

the amount of manure exchanged, and LandTech would pay OFE accordingly, as

is contemplated by the sentence in Appendix A, “Tonnage of the manure removed

will be tracked and billed according to the quantities listed on the ‘OFE – Manure

Management Manifest.’” (Joint Trial Ex. 1). We refuse to disregard the sentence

of the Agreement reserving an essential element of the contract for future

agreement.   See Dubuc, Lucke & Co. v. Diflora, 4th Dist. Washington No.

99CA01, 1999 WL 606779, *10 (Aug. 4, 1999) (“We cannot disregard the plain

language of the contract and, in effect, ‘create a new contract by finding an intent

not expressed in the clear language employed by the parties.’”), quoting Alexander

v. Buckeye Pipe Line Co., 53 Ohio St.2d 241, 246 (1978). Moreover, there is no

evidence that the parties later agreed in writing to a quantity term.       Indeed,

LandTech’s sole remaining count in the case is for breach of the Agreement, not a

subsequent agreement to a quantity term.

       {¶47} LandTech also argues that the Agreement is an enforceable

agreement to make an agreement. It is true that, under Ohio law, an agreement to

make an agreement is not per se unenforceable. M.J. DiCorpo, Inc. v. Sweeney,

69 Ohio St.3d 497, 503 (1994).       “‘The enforceability of such an agreement

depends rather on whether the parties have manifested an intention to be bound by

its terms and whether these intentions are sufficiently definite to be specifically


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enforced.’” Id., quoting Normandy Place Assocs. v. Beyer, 2 Ohio St.3d 102, 105-

106 (1982). In this case, the Agreement is not an enforceable agreement to make

an agreement.

       {¶48} First, the plain language of the Agreement reflects that the parties did

not intend to be bound by any purported quantity stated in the Agreement,

including “all available tonnage per year of manure.” That is, the existence of a

“[s]pecific quantity” of manure is contingent on each party’s future agreement to

the quantity based on further negotiations. (Agreement, Appendix B (“Specific

quantity to be determined by and mutually agreeable [sic] both parties.”

(Emphasis added.))). It is clear from the Agreement that each party retained

discretion to refuse to agree to a specific quantity if the quantity was not agreeable

to it. See Watkins & Son Pet Supplies v. Iams Co., 254 F.3d 607, 615 (6th

Cir.2001) (“[T]he contract makes it clear that Iams retained discretion to refuse to

renew if the terms proposed were not ‘mutually agreeable.’”); M.J. DiCorpo, Inc.

at 503 (“[T]he express terms of the letter of intent clearly indicate that that

document was nothing more than an agreement to principles which were subject to

further negotiation and a detailed and definitive merger agreement. While the

letter may have provided the basic framework for future negotiations, the letter

itself did not address all the essential terms of the merger. Thus, the letter of intent

is not a legally enforceable contract.”).


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       {¶49} Second, even assuming the parties manifested an intention to be

bound by the Agreement’s terms, because a quantity term is essential to a contract

for the sale of goods under the UCC, and because the parties reserved that term for

agreement in the future following further negotiations, it is not reasonably possible

to fill in the “quantity gap” in the Agreement. See Oglebay Norton Co. v. Armco,

Inc., 52 Ohio St.3d 232, 236-237 (1990) (“We have * * * held that ‘[i]f it is found

that the parties intended to be bound, the court should not frustrate this intention, if

it is reasonably possible to fill in some gaps that the parties have left, and reach a

fair and just result.’” (Emphasis added.)), quoting Litsinger Sign Co. v. American

Sign Co., 11 Ohio St.2d 1, 14 (1967). An absent quantity term in a contract for the

sale of goods is not a gap that can be filled under the UCC. See Skinner v.

Cleveland Clinic Found., 8th Dist. Cuyahoga No. 52788, 1987 WL 17901, *2

(Oct. 1, 1987), citing Official Comment One to R.C. 1302.04 and Mr. Mark Corp.

v. Rush, Inc., 11 Ohio App.3d 167 (8th Dist.1983). Accordingly, the parties’

intentions are not sufficiently definite to be specifically enforced. See Willoughby-

Eastlake Pub. Library Bd. v. City of Willoughby Hills, 11th Dist. Lake No. 93-L-

172, 1994 WL 321199, *3 (June 30, 1994).

       {¶50} Finally, while Official Comment One to R.C. 1302.04 points out that

the quantity term “need not be accurately stated,” it also provides that “recovery is

limited to the amount stated.” In other words, the quantity stated in the contract


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need not be accurate—in the sense that the quantity stated in the contract is

something other than the quantity actually exchanged; however, recovery is

limited to a quantity stated. In this case, it is not that the Agreement’s quantity

term is not accurately stated. Rather, as we explained above, a quantity term is not

stated at all and is instead reserved for future agreement of the parties.

         {¶51} In sum, the Agreement’s discussion of the quantity of manure leaves

an essential term of the contract—quantity—dependent on future agreement, and

the supposed quantity term is not sufficiently specific to be enforced as LandTech

seeks.    To hold otherwise would require us to rewrite R.C. 1302.04 or the

Agreement. We are not allowed to do either. See Kish v. Akron, 109 Ohio St.3d

162, 2006-Ohio-1244, ¶ 44 (“Our role is to interpret existing statutes, not rewrite

them.”); Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities

Auth., 78 Ohio St.3d 353, 362 (1997) (“It is not the responsibility or function of

this court to rewrite the parties’ contract in order to provide for a more equitable

result. A contract ‘does not become ambiguous by reason of the fact that in its

operation it will work a hardship upon one of the parties thereto.’”), quoting Ohio

Crane Co. v. Hicks, 110 Ohio St. 168, 172 (1924). Although the Agreement is

unenforceable, we point out that LandTech “could enforce [the Agreement] for the

amount of [manure] that it had paid for, but no more.” H & M Landscaping Co.,

Inc., 2010-Ohio-4138, at ¶ 20.


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       {¶52} For all of the reasons above, viewing the evidence in a light most

favorable to LandTech, reasonable minds can come to but one conclusion, that

being in favor of OFE and Trillium.    The Agreement is unenforceable as a matter

of law because it unambiguously lacks an essential quantity term. There were no

issues of fact to be determined by a trier of fact. See Arrotin Plastic Materials of

Indiana, 865 N.E.2d at 1042. Therefore, the trial court erred by denying OFE’s

and Trillium’s motions for summary judgment and JNOV.

       {¶53} OFE’s and Trillium’s first assignments of error are sustained.

                       OFE’s Assignment of Error No. II

       The trial court erred in denying Ohio Fresh Eggs judgment as a
       matter of law or, alternatively, a new trial, because the
       agreement at issue unambiguously expired on June 30, 2011,
       which was prior to the 2013 events that were alleged to have
       breached that agreement. (App. at B16)

                       OFE’s Assignment of Error No. III

       The trial court erred in denying Ohio Fresh Eggs judgment as a
       matter of law or, alternatively, a new trial, because by way of a
       novation expressed through writings and the conduct of all
       parties, LandTech and Ohio Fresh Eggs released one another
       from any obligations under their written agreement and
       substituted Trillium in place of Ohio Fresh Eggs. (App. at B16)

                       OFE’s Assignment of Error No. IV

       The trial court erred in denying Ohio Fresh Eggs judgment as a
       matter of law or a new trial because plaintiff did not present any
       concrete, reliable, or accurate evidence of damages. (App. at
       B16)


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                     OFE’s Assignment of Error No. V

      The trial court abused its discretion by admitting       damages
      calculations proffered by a lay witness that             deviated
      substantially from acceptable practice, artificially      inflated
      LandTech’s damages claims, and were therefore             unfairly
      prejudicial to Ohio Fresh Eggs. (Tr. Vol. V at 87)

                     OFE’s Assignment of Error No. VI

      The trial court erred in denying Ohio Fresh Eggs a new trial on
      damages because the jury’s conclusion that LandTech mitigated
      its damages is against the manifest weight of the evidence. (App.
      at B16)

                    OFE’s Assignment of Error No. VII

      The trial court erred in denying Ohio Fresh Eggs a new trial, as
      required by Ohio Rule of Civil Procedure 49(B), when the jury
      returned inconsistent and irreconcilable answers to written
      interrogatories. (App. at B16)

                   Trillium’s Assignment of Error No. II

      The trial court erred in denying Trillium’s JNOV motion, and
      the jury’s verdict is against the manifest weight of the evidence,
      because Trillium was not a party to the contract and is not liable
      under the contract under any theory of successor liability. (See
      Order Denying JNOV at 2; Trial Transcript, Vol. VIII at 157-
      161; Jury Verdict Form And Interrogatories).

                   Trillium’s Assignment of Error No. III

      The trial court erred in denying Trillium’s JNOV motion, and
      the jury’s verdict is against the manifest weight of the evidence,
      because the 2006 Agreement terminated on June 30, 2011, two
      years prior to any alleged breach. (See Order Denying JNOV at
      2; Trial Transcript, Vol. VIII at 157-161; Jury Verdict Form
      And Interrogatories).


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                    Trillium’s Assignment of Error No. IV

      The trial court erred in denying Trillium’s JNOV motion, and
      the jury’s verdict is against the manifest weight of the evidence,
      because LandTech failed to establish its damages with
      reasonable certainty. (See Order Denying JNOV at 2; Trial
      Transcript, Vol. VIII at 157-161; Jury Verdict Form And
      Interrogatories).

                    Trillium’s Assignment of Error No. V

      The trial court erred in denying Trillium’s JNOV motion, and
      the jury’s verdict is against the manifest weight of the evidence,
      because LandTech failed to mitigate its damages. (See Order
      Denying JNOV at 2; Trial Transcript, Vol. VIII at 157-161; Jury
      Verdict Form And Interrogatories).

                    LandTech’s Assignment of Error No. I

      The Trial Court erred in denying Plaintiff’s Post-trial Motions
      to certify the damages award as a total damages award of
      $5,169,963.00. Appendix A: R.190, Judgment Entry overruling
      LandTech’s Motion for JNOV.

                   LandTech’s Assignment of Error No. II

      The Trial Court erred in denying Plaintiff’s Post-trial Motions
      to certify the damages award as joint and several. Appendix A:
      Appendix A: [sic] R.190, Judgment Entry overruling
      LandTech’s Motion for JNOV.

      {¶54} In OFE’s and Trillium’s remaining assignments of error, they

challenge the jury’s verdict on multiple grounds. In LandTech’s assignments of

error, it argues that the trial court erred by denying its motion to certify the

damages award as a joint and several, total damages award.



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       {¶55} In light of our decision to sustain Trillium’s and OFE’s first

assignments of error, Trillium’s second, third, fourth, and fifth assignments of

error, OFE’s second, third, fourth, fifth, sixth, and seventh assignments of error,

and LandTech’s first and second assignments of error are moot, and we decline to

address them. App.R. 12(A)(1)(c); Mascarella v. Simon Property Group, 7th Dist.

Mahoning Nos. 06 MA 45 and 06 MA 62, 2007-Ohio-5351, ¶ 32.

       {¶56} Having found error prejudicial to the appellants/cross-appellees

herein in the particulars assigned and argued, we reverse the judgment of the trial

court and remand for further proceedings consistent with this opinion.

                                                          Judgment Reversed and
                                                               Cause Remanded

ROGERS, P.J. and SHAW, J., concur.

/jlr




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