[Cite as XPX Armor & Equip., Inc. v. SkyLIFE Co., Inc.,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

XPX Armor & Equipment, Inc. Court of Appeals Nos. L-19-1109 L-19-1293 Appellant/Cross-Appellee Trial Court No. CI0201704976 v.

The SkyLIFE Company, Inc. DECISION AND JUDGMENT

Appellee/Cross-Appellant Decided: September 18, 2020

*****

Gerald R. Kowalski and J. Peter Millon, for appellant/cross-appellee.

Bruce W. Boerst, Jr. and Michelle Safro, for appellee/cross-appellant.

*****

MAYLE, J.

{¶ 1} In this consolidated appeal, plaintiff-appellant, XPX Armor & Equipment,

Inc., appeals the May 16, 2019 judgment of the Lucas County Court of Common Pleas

granting summary judgment in favor of defendant-appellee, The SkyLIFE Company, Inc. (case No. L-19-1109). SkyLIFE appeals the August 21, 2019 judgment of the Lucas

County Court of Common Pleas denying its motion for attorney fees (case No.

L-19-1293). SkyLIFE has also filed a motion asking that we sever the two appeals and

dismiss XPX’s appeal.

{¶ 2} For the following reasons, we affirm the trial court judgment, in part, and

reverse, in part. We deny SkyLIFE’s motion to sever the appeals and to dismiss XPX’s

appeal.

I. Background

{¶ 3} Our summary of the facts giving rise to this appeal is taken from the

affidavits submitted in support of the parties’ respective summary-judgment positions and

the documents attached to those affidavits. As is often the case, the discrepancies in the

facts set forth in those affidavits are at the heart of this appeal.

A. The Beginning of the Parties’ Relationship

{¶ 4} SkyLIFE is a corporation that manufactures and supplies aerial delivery

packages to government organizations involved in humanitarian aid. XPX is a

corporation that designs and manufactures personal protective equipment, including

military body armor, performs screen printing, and produces other fabric products.

{¶ 5} XPX’s president, Timothy D’Annunzio, is also the owner and president of

Paraclete Aviation, a North Carolina company that owns a fleet of aircraft and regularly

contracts with companies and individuals to provide services related to those planes.

2. From approximately May of 2016 through June of 2017, Paraclete provided aircraft time

and services to SkyLIFE for the testing of its products.

{¶ 6} Steven Singletary is a parachute expert who was employed as a third-party

consultant for SkyLIFE and was responsible for SkyLIFE’s product testing. D’Annunzio

served as a parachute rigger for the U.S. army and has experience in designing

parachutes. In approximately August of 2016, Singletary began encouraging XPX to

provide a quote to SkyLIFE to manufacture its cruciform parachutes. Singletary told

D’Annunzio that SkyLIFE had been purchasing parachutes from a Chinese manufacturer,

but that it may be interested in transitioning its business to an American manufacturer.

After several discussions with Singletary, XPX eventually decided to explore the

opportunity.

{¶ 7} In May of 2017, Singletary introduced D’Annunzio to SkyLIFE employee,

Matthew Medlin, and later that month he met Anais Klopping, SkyLIFE’s Vice-President

Center of Excellence. XPX told SkyLIFE that it could manufacture a parachute that was

better and less expensive than the parachute SkyLIFE had been purchasing from the

Chinese manufacturer. Klopping toured XPX’s facilities and XPX showed her its

parachute design. The parties’ versions of events begin to diverge at this point.

{¶ 8} According to XPX, SkyLIFE indicated that its primary objective was to

purchase functional parachutes and not necessarily parachutes that conform exactly to the

existing specifications of the Chinese-manufactured parachutes. SkyLIFE insists,

however, that it told XPX that it was specifically interested in purchasing parachutes that

3. conform to the specifications of its current parachutes. It also claims that it informed

XPX that SkyLIFE must inspect and test its vendors’ parachutes to ensure that 98 percent

or more of the products being packed into the parachute systems land intact; if the

XPX-designed parachutes did not achieve a 98 percent success rate, XPX could not be an

approved vendor. SkyLIFE maintains that XPX expressed that it understood this

standard and agreed that if its design proved unsuccessful, it would manufacture the

parachutes to the specifications and success rate required to fulfill SkyLIFE’s customer

contract. XPX denies that SkyLIFE told it of this 98-percent standard.

{¶ 9} SkyLIFE says that it also told XPX that it could not issue any purchase

orders—what SkyLIFE considers to be a contract—if XPX was not an approved vendor,

and it would not pay the expenses associated with XPX becoming an approved vendor.

XPX denies that SkyLIFE told it that a purchase order was viewed as a SkyLIFE

contract.

{¶ 10} XPX claims that on or about May 11, 2017, it internally tested 10 prototype

parachutes and all 10 opened successfully and fell at a rate of 30 feet per second. It

reported to SkyLIFE that its test drop had been successful and SkyLIFE asked it to ship

50 parachutes for testing in Africa and one to SkyLIFE at its Rossford facility where

SkyLIFE engineers would draw up prints based on the design. XPX maintains that

SkyLIFE indicated that it would need approximately 20,000 parachutes per month

starting in November of 2017.

4. {¶ 11} SkyLIFE received the 50 test parachutes on June 1, 2017. It claims that

around that time, XPX began asking SkyLIFE to issue “a written document

memorializing SkyLIFE’s agreement to test [XPX’s] parachutes for a potential purchase

order” to enable XPX to obtain a business loan. (Emphasis added.) XPX agrees that it

requested a written agreement, but it characterizes its request differently. It claims that

given the significant risk it was taking by manufacturing more than 15,000 parachutes a

month and allowing net 60 days for payment, it told SkyLIFE that it needed “a signed

agreement for the purchase of the parachutes.” (Emphasis added.)

B. The Supply Agreement

{¶ 12} On July 1, 2017, SkyLIFE executed a Supply Agreement. XPX executed

the agreement on July 7, 2017. The Supply Agreement provided, in pertinent part, as

follows:

This Agreement is made between The SkyLIFE Company, Inc. * * *

and XPX Armor & Equipment, INC * * *. This Agreement references

SkyLIFE Purchase Order No. .................. dated ..................

Product

This agreement concerns the supply of …Cruciform (SkyHAWK

Gen 2) Parachutes

Product will conform to the following specification: SkyLIFE print

#SL5A55-127…

5. Cradle Harness – Product supplied will conform to the following

specification: SkyLIFE print #SL5A55-203

D-Ring (Off the shelf)

Supply

Supply will be scheduled as follows; Subject to internal

qualifications done by SkyLIFE.

500 (SL5A55-127) August, 2017 – October, 2017

15,000 November, 2017 – June, 2019

Volumes will increase as SkyLIFE opens new production sites for

humanitarian aid.

Delivery

FOV SkyLife

Price

The agreed price is $39.18 for the SkyHAWK Gen 2 Parachute

The agreed price is $12.00 for the Cradle Harness

The agreed price is $1.12 for the D-rings

Compliance

Upon receipt at the SkyLIFE production facility, the product/s

supplied under this agreement will be inspected by SkyLIFE Quality

Control inspectors to ensure compliance with material and dimensional

requirements as called for under this Supply Agreement. In the event of

6. non-compliance, payment for the non-compliant material will be withheld

until the material is brought into compliance or replaced. Paraclete XP will

be responsible for all freight costs incurred in the transportation of material

to a place of remediation or replacement and back to the SkyLIFE

Production Facility.

Payment

Payments will be made to Paraclete in arrears after shipments are

received at the SkyLIFE Production facility and after conformance with the

stated quality, finish, dimensional compliance has been confirmed by

inspection.

The payment schedule is as follows:

Net 60 days after delivery

***

Contingency Clause

Both parties hereby acknowledge and agree that this Supply

Agreement and any/all future agreements and/or amendments hereto,

between SkyLIFE and XPX Armor & Equipment, INC., are contingent on

SkyLIFE’s Prove Out Vendor Qualification Standards. Should XPX Armor

& Equipment, INC. not meet the SkyLIFE Prove Out Vendor Qualification

Standards, this Supply Agreement will be postponed or null and void at

SkyLIFE’s sole discretion.

7. {¶ 13} Significant to this appeal, XPX claims that it understood that SkyLIFE

print #SL5A55-127 was to be created by SkyLIFE’s engineers based on the sample

parachute it mailed to SkyLIFE. SkyLIFE maintains that “SkyLIFE print #SL5A55-127”

was a typographical error—the Supply Agreement was supposed to reference SkyLIFE

print #SL5A55-122—and the parachutes were supposed to conform to the specifications

of this already-existing print.

{¶ 14} Also significant, SkyLIFE maintains that the Prove Out Vendor

Qualification Standards referenced in the contingency clause of the Supply Agreement is

the 98-percent success rate for test drops that Klopping allegedly told D’Annunzio about

during their May meeting. XPX denies that it was informed of the 98-percent success

rate; rather, it contends, Singletary mentioned that XPX required a 90-percent success

rate, and Klopping characterized the Prove Out Vendor Qualifications Standards as a

“mere formality.” XPX insists that at the time the Supply Agreement was executed,

SkyLIFE had not provided it with testing procedures, protocols, controls, or formulas

used to determine what makes a test drop “successful.”

{¶ 15} SkyLIFE claims that it tested XPX’s batch of 50 parachutes on July 15,

2017, and on July 16, 2017, it circulated an internal email report that the parachutes

achieved a 95-percent success rate. It maintains that on July 17, 2017, it sent XPX a copy

of the report and notified it that the parachutes had not passed. XPX, on the other hand,

insists that Singletary told it on July 15, 2017, that he spoke with Greg Konczal, a

SkyLIFE engineer, who told him that the test drop had gone great, achieved a 96-percent

8. success rate, and passed the Vendor Prove Out Qualifications Standards. XPX

acknowledges that on July 17, 2017, Klopping informed XPX that the parachutes had a

95-percent success rate, but it insists that she never sent an internal report of test results

or indicated that this was a failing result. XPX’s contention is supported by the parties’

July 17, 2017 email correspondence.

{¶ 16} According to SkyLIFE, between July 17, 2017, and August 1, 2017,

Klopping spoke with XPX via telephone and reiterated that the parachutes had not passed

inspection. Klopping gave XPX the option to provide another batch of parachutes to be

tested or produce parachutes that conformed to SkyLIFE’s product specifications. XPX

indicated that it would produce another batch of its own design. During this time frame,

XPX repeatedly requested a letter of credit, which SkyLIFE declined to provide.

{¶ 17} XPX agrees that it requested a letter of credit; it explains that that letter was

necessary because of the expenses it was incurring and the payment arrangements which

allowed SkyLIFE 60 days to pay for parachutes. XPX informed SkyLIFE that it had

hired workers, purchased equipment, and was producing parachutes in quantities called

for in the Supply Agreement. XPX insists that in response, it received assurances from

SkyLIFE: Klopping indicated via email that she was “excited to see the progress update”

and thanked XPX for “being a valuable supplier.” But in this same string of email

correspondence, Klopping mentioned that she was aware that XPX was “working very

hard to correct the issues with the parachute performance.” XPX claims that this was the

first it had heard of any performance issues, and it informed SkyLIFE “that the

9. performance standard was new, that the actual testing standards had yet to be identified,

and that an increase in testing standards would require an increase in price.”

{¶ 18} According to SkyLIFE, on August 4, 2017, XPX and SkyLIFE had a

telephone conversation during which D’Annunzio yelled at Klopping for not issuing a

letter of credit or purchase order and told her it was not releasing any more parachutes for

testing. XPX insisted to SkyLIFE that its success rate of 95 percent was sufficient and

told SkyLIFE to issue a purchase order or it would get legal involved. SkyLIFE says that

it told XPX that it could not issue a letter of credit or a purchase order to an unqualified

vendor.

{¶ 19} The parties engaged in email communications on August 11, 2017. XPX

sought to make arrangements to ship 500 parachutes. SkyLIFE told XPX not to ship the

500 parachutes because the Prove Out Vendor Qualifications Standards had not been met,

but said it was happy to discuss a new round of testing. XPX maintains that this was the

first time it was told that the Prove Out Vendor Qualifications Standards had not been

met. In this email correspondence, XPX requested clarification about how the tests were

conducted and what constituted success. XPX insists that this was also the first time it

was informed of the 98-percent success rate requirement. It claims that SkyLIFE first

told it that a 90-percent success rate applied, then it said a 95-percent success rate

applied; but regardless of which standard applied, SkyLIFE had “confirmed that all

parachutes tested by XPX were successful.” XPX further claims that “SkyLIFE provided

10. no further explanation as to what constituted a successful test drop or how it had

apparently changed the applicable standard without notifying XPX.”

{¶ 20} SkyLIFE says that it had a telephone conversation with XPX on August 15,

2017, during which it reiterated the required 98-percent success rate, and memorialized

that conversation in an email the next day. XPX challenged the testing procedures.

{¶ 21} In email correspondence of August 18, 2017, SkyLIFE explained some of

the procedures used in conducting test drops and XPX indicated that it understood and

would do “whatever you need from us.” In that correspondence, SkyLIFE told XPX that

it “knows and agrees” that XPX’s canopies are “solid in design and manufacturing.”

Both parties agree that on August 22, 2017, XPX shipped an additional 50 XPX-designed

parachutes.

{¶ 22} On August 24, 2017, SkyLIFE advised XPX of a delay in testing because

of an unrelated accident involving a third-party airplane supplier. Via emails exchanged

on August 25, 2017, XPX told SkyLIFE that it was ramping up production in order to

meet production deadlines. XPX acknowledged that it would not receive a blanket

purchase order until the product was officially validated, but expressed confidence in the

quality of its parachutes. It also acknowledged that SkyLIFE might not be able to accept

15,000 parachutes in November, but asked what quantity it would accept, suggested that

it would seek out other customers for its parachutes, and asked for an in person meeting.

SkyLIFE advised XPX to slow down production; XPX emphasizes, however, SkyLIFE

did not advise it to stop production. XPX told SkyLIFE that because SkyLIFE had not

11. given it any further detail, it would continue to move forward under the terms of the

Supply Agreement and it again requested an in person meeting.

{¶ 23} On October 2, 2017, XPX emailed Klopping and SkyLIFE’s CFO,

updating them as to the production schedule it was following—and the expenses that it

had incurred—to fulfill the November 2017 shipment of 15,000 parachutes. SkyLIFE’s

CFO, believing he was responding only to Klopping, accidentally responded to XPX. He

wrote: “[M.W.] told me that the 200MT monthly delivery per [A.E.] was crazy and he is

going to dig into it. I suggest that you tell Tim [D’Annunzio] that we received guidance

from [redacted] which was half their earlier commitment and we are working to

determine the accuracy of the guidance before we discuss further.”

{¶ 24} In response to the CFO’s email, XPX accused SkyLIFE of intentionally

misleading it and allowing it to “continu[e] to manufacture product SkyLIFE never

intends to accept.” It complained that it had purchased hundreds of thousands of dollars

in raw materials and maintained a manufacturing schedule to enable it to produce

exaggerated quantities of parachutes. XPX warned SkyLIFE that news of this would

spread quickly and would be “suicidal for SkyLIFE when it comes to military customers

and a U.S. manufacturer.”

{¶ 25} On October 5, 2017, SkyLIFE told XPX that it was attempting to confirm

its customer demand and it had still been unable to test the second batch of parachutes.

SkyLIFE suggested that they try to negotiate an amended supply agreement. It sent a

12. proposed amended Supply Agreement on October 19, 2017; XPX sent a counterproposal

on October 24, 2017.

{¶ 26} On October 27, 2017, XPX asked about the status of the amended Supply

Agreement and said that it assumed that its second batch of parachutes passed testing and

XPX would be able to deliver 15,000 parachutes. SkyLIFE informed XPX that it still

had not been able to test the second batch, but it would send its revisions to the amended

Supply Agreement the next day. XPX suggested that it postpone testing of the second

batch until the amended Supply Agreement was executed, and SkyLIFE agreed.

{¶ 27} SkyLIFE sent its revisions on October 31, 2017. XPX maintains that the

changes were fundamentally unfair to XPX. It told SkyLIFE that it was “outraged” and

that it was “done with this farce.” It asked that SkyLIFE not contact it “until [it was]

ready to negotiate in good faith.” XPX was specifically unhappy with the Vendor Prove

Out Qualifications Standards, which were revised to specify that failure of the full

SkyLIFE box delivery system to retain oil, failure of a non-XPX worker or loader to

properly load the system, or failure of the SkyLIFE box would be considered XPX’s

parachute failure. XPX did not issue another counterproposal.

{¶ 28} XPX claims that SkyLIFE failed to arrange for the shipment of 500

parachutes in September of 2017, and 15,000 in November of 2017. On November 3,

2017, XPX’s counsel corresponded with SkyLIFE and requested that it perform under the

Supply Agreement and make arrangements for delivery and acceptance of the 15,000

13. parachutes for the November shipment. SkyLIFE refused to do so, but it issued payment

for the two test batches.

C. XPX’s Complaint

{¶ 29} On November 30, 2017, XPX filed a complaint against SkyLIFE for breach

of the written Supply Agreement. The complaint alleged that XPX performed all

conditions precedent to the enforcement of the agreement and despite numerous

demands, SkyLIFE failed or refused to perform its obligations under the agreement.

XPX alleged that as a result of SkyLIFE’s breach of the Supply Agreement, it incurred

payment obligations to third party vendors and suffered harm in the form of financial and

non-financial investments and expenses related to the costs of manufacturing parachutes

for SkyLIFE.

{¶ 30} On March 13, 2018, XPX filed a first amended complaint adding a claim

for promissory estoppel. It alleged that SkyLIFE made a clear and unambiguous promise

that it intended to purchase the parachutes, and in reasonable and foreseeable reliance on

that promise, XPX “invested substantial financial and non-financial assets into the

production of the supply of parachutes.”

{¶ 31} SkyLIFE answered and counterclaimed seeking damages for the 100

parachutes it paid for that did not meet its Prove Out Vendor Qualifications Standards.

D. The Motion for Summary Judgment

{¶ 32} SkyLIFE moved for summary judgment on both of XPX’s claims. It

argued that the Supply Agreement was not an enforceable contract; rather, it was more

14. akin to a letter of intent in that it memorialized the parties’ understanding that its basic

terms would be negotiated into a purchase order when and if XPX’s parachutes met

SkyLIFE’s specifications and qualification standards. It emphasized that the agreement

contained blanks for purchase order numbers and dates to be filled in in the future.

SkyLIFE also maintained that the agreement conferred no benefit on XPX for producing

its goods for quality inspection, it did not obligate SkyLIFE to accept uninspected or non-

conforming goods, it proposed only a future production schedule, it conditioned payment

on goods meeting qualifications standards, and it contained an illusory promise that gave

SkyLIFE the exclusive, non-mutual right to determine if XPX met the specifications and

qualification standards.

{¶ 33} SkyLIFE argued that even if the Supply Agreement was an enforceable

contract, XPX could not show that it performed under the Supply Agreement as it was

required to do to prevail on its claim. Specifically, SkyLIFE argued that the parachutes

did not conform to the specifications, they did not meet SkyLIFE’s Prove Out Vendor

Qualification Standards, and XPX did not supply 500 parachutes per month for the period

of August 2017 to October 2017, as it was obligated to do under the Supply Agreement.

{¶ 34} In addition to being unable to prove its own performance, SkyLIFE argued

that XPX could not show that SkyLIFE breached the Supply Agreement. SkyLIFE

maintained that while XPX contended that it breached the agreement on October 22,

2017, by notifying XPX that it would not accept shipments, by refusing to issue a

purchase order, and by failing to arrange for the shipment of XPX’s parachutes, in fact,

15. SkyLIFE was not obligated to accept the shipment of parachutes that did not conform to

its specifications and qualification standards. It further argued that the Supply

Agreement did not obligate it to arrange for shipment, and even if it was obligated to

accept the shipment of non-conforming parachutes, XPX never sent the 500 parachutes it

was required to produce.

{¶ 35} Finally, SkyLIFE argued that XPX suffered no damages as a result of any

alleged breach of contract. This is because the Supply Agreement permitted SkyLIFE to

withhold payment for parachutes that did not conform to its internal qualifications.

{¶ 36} As to XPX’s promissory estoppel claim, SkyLIFE argued that this claim

was barred because the statute of frauds requires contracts to be in writing if they cannot

be performed within a year; XPX relied on parol evidence and the Supply Agreement was

a fully integrated agreement; there was no clear and unambiguous promise because the

Prove Out Vendor Qualification Standards were not defined in the agreement and the

agreement conferred no substantive obligations on either party; and XPX could not show

reasonable reliance because the Supply Agreement does not say that SkyLIFE will

purchase the parachutes or issue a purchase order—it says that supply “will be

scheduled” subject to the parachutes meeting its internal qualifications. It argued again

that XPX suffered no injury because the agreement did not say that SkyLIFE would pay

costs and expenses if the supply did not meet inspection standards or if the parties failed

to execute a purchase order.

16. {¶ 37} SkyLIFE also sought summary judgment on its unjust enrichment claim. It

argued that the Supply Agreement required that the parachutes meet inspection standards

and that no payment would be made for non-conforming materials. Nonetheless, it

tendered payment to XPX for non-conforming parachutes, which XPX improperly

accepted and retained.

E. XPX’s Opposition to SkyLIFE’s Summary-Judgment Motion

{¶ 38} In opposing SkyLIFE’s summary-judgment motion, XPX first challenged

Klopping’s affidavit as contradicting her deposition testimony. It argued that the

contradictory portions of her affidavit should be disregarded. XPX also argued that there

exist genuine issues of material fact as to all elements of its breach-of-contract claim.

{¶ 39} As to the first element, the existence of an enforceable contract, it claimed

that the Supply Agreement contained all the essential terms of a valid contract—

identification of the parties, signatures, specification of the parachutes and equipment,

price and quantity terms, and consideration—and did not relate merely to the inspection

of parachutes. XPX distinguished case law relied on by SkyLIFE in support of its

position that the Supply Agreement was only a letter of intent or an agreement in

principle. It argued that the contingency clause required application of an objective

standard—“whether the performance of the parachutes would satisfy a reasonable

person”—and required SkyLIFE to show good faith by providing detailed testing

information. And even if the agreement was only an agreement to test the parachutes,

17. SkyLIFE breached the agreement by testing only 40 of the first 50 parachutes and failing

to test the second batch of parachutes.

{¶ 40} XPX also argued that even though the Supply Agreement was an

enforceable contract, certain terms were ambiguous and required parol evidence.

Specifically, it contended that the following issues required consideration of parol

evidence: (1) what standards applied, (2) whether XPX actually met the standards,

(3) whether SkyLIFE properly conducted testing or changed its testing standards,

(4) SkyLIFE’s inducement of XPX to rely on the terms of the agreement, (5) SkyLIFE’s

encouragement of XPX to continue producing parachutes, and (6) how SkyLIFE

breached the agreement.

{¶ 41} As to the second element, XPX’s performance under the agreement, XPX

argued that it reasonably relied on SkyLIFE’s pre-execution representations concerning

the required success rate: 90 or 95 percent. It insisted that its parachutes met this

standard, SkyLIFE contradicted itself concerning the standards, and SkyLIFE refused to

answer questions about what the standards entailed and how XPX’s parachutes were

tested. XPX maintained that even SkyLIFE admitted that the Prove Out Vendor

Qualifications Standards were vague and ambiguous, and XPX claimed that SkyLIFE’s

improper testing of the parachutes and its withholding of information concerning the

testing violated the agreement and raised genuine issues of material fact whether the

parachutes actually met the standards.

18. {¶ 42} As to the third element, SkyLIFE’s breach of the agreement, XPX argued

that SkyLIFE offered no evidence to establish that the first batch of parachutes was non-

conforming and failed to inspect the second batch in breach of the agreement. It also

argued that SkyLIFE breached the agreement by misleading XPX into believing that a

90-percent success rate applied, by refusing to accept XPX’s parachutes, by failing to

issue a purchase order, by failing to test the parachutes in good faith, and by failing to

arrange for the shipment of XPX’s November 2017 supply.

{¶ 43} As to the fourth and final element, XPX’s damages, XPX argued that it

invested in machines, hired employees, borrowed money, and contracted with third-party

vendors for the sole purpose of manufacturing parachutes for SkyLIFE, and it produced

thousands of parachutes to comply with its obligations under the Supply Agreement. It

contended that it shipped—and SkyLIFE accepted—17,959 parachutes, 16,140 harnesses,

and 17,959 D-rings for which SkyLIFE has not paid the invoices. It maintained that

while it has attempted to mitigate its damages, virtually no other market exists for the

parachutes.

{¶ 44} Regarding its promissory estoppel claim, XPX argued that it consistently

updated SkyLIFE about the resources it had invested and the quantities of parachutes

being produced, and SkyLIFE expressed its satisfaction with the relationship and

excitement at the updates. It claimed that SkyLIFE never stated that it had voided the

agreement under the contingency clause. XPX maintained that its reliance on SkyLIFE’s

misrepresentations was reasonable given that XPX had no way of knowing that

19. SkyLIFE’s representations were false, did not control the testing, did not devise the

standards, and did not have access to the test results. XPX also argued that SkyLIFE’s

statute of frauds defenses were inapplicable under R.C. 1302.04(C)(1) because the

parachutes were custom goods manufactured for a buyer, and the buyer received notice

that the seller had made a substantial beginning of manufacturing the goods or

commitments to their procurement.

{¶ 45} As to SkyLIFE’s unjust enrichment claim, it argued that the Supply

Agreement did not provide for any refund for the test parachutes, regardless of whether

they passed or failed SkyLIFE’s standards.

F. The Trial Court’s Judgment Granting Summary Judgment

{¶ 46} In a judgment journalized on April 26, 2019, the trial court granted

SkyLIFE’s motion and dismissed XPX’s claims. It also dismissed SkyLIFE’s

counterclaim.

{¶ 47} In the trial court’s view, there was a written Supply Agreement under

which XPX agreed to supply parachutes that conform to SkyLIFE print #SL5A55-127,

but XPX was also trying to negotiate a “side deal,” pursuant to which the Supply

Agreement would be amended to allow it to supply its own “better and cheaper” product

instead of SkyLIFE print #SL5A55-127. The court accepted Klopping’s explanation that

#SL5A55-127 was an error and that the correct print number was #SL5A55-122.

{¶ 48} The court observed that the Supply Agreement contained all material terms

of the parties’ agreement, including a “description of [the] product, cost, delivery,

20. warranties, etc.” According to the agreement, XPX was to “supply a certain number of

parachutes, cradle harnesses, and D-rings by certain deadlines.” The agreement provided

that the parachutes would conform to SkyLIFE print #SL5A55-127, and XPX expressly

warranted that all goods and services would “strictly conform to the contract documents.”

Under the terms of the Supply Agreement, if the product did not meet the SkyLIFE Prove

Out Vendor Qualification Standards, the agreement would be postponed or would be null

and void at SkyLIFE’s sole discretion.

{¶ 49} The court found that it was undisputed that XPX never sent SkyLIFE the

specific parachutes called for in the Supply Agreement and was never provided a drawing

for the specifications. Instead, XPX met with Medlin in May of 2017, and told him that

XPX could manufacture a better parachute using a more efficient process and less

expensive materials. So despite the provisions of the Supply Agreement, XPX “never

really knew with certainty what the design specifications were despite the title of the

product noted in the contract.” Rather, the court found, XPX sent SkyLIFE test

parachutes on June 1, 2017, hoping that they would suffice. SkyLIFE agreed to try them

out and, if they were successful, it might be interested. But SkyLIFE’s primary objective

was to purchase parachutes that conformed to the approved specifications. The court

found that XPX agreed that if its “better and cheaper” parachutes did not prove

successful, it would manufacture the parachutes described in the Supply Agreement.

{¶ 50} The court further found that SkyLIFE tested some or all of the 50 test

parachutes on July 15, 2017, determined that they were unsatisfactory, notified XPX, and

21. gave it the option either to produce another batch of the XPX-designed parachute or to

produce a batch that conformed to the supply agreement. XPX chose to supply 50 more

of its own design.

{¶ 51} The court acknowledged that on August 25, 2017, XPX informed SkyLIFE

that it was ramping up production to enable it to deliver 15,000 parachutes per month by

November of 2017. It found that XPX decided to do this despite understanding the risks

involved: that the test parachutes may not succeed in testing; that XPX did not know the

actual design specifications; that the Supply Agreement allowed SkyLIFE to unilaterally

terminate the contract if the parachutes did not meet the Prove Out Vendor Qualification

Standards; and that XPX did not know what those standards were when it executed the

Supply Agreement.

{¶ 52} The court found that the parties unsuccessfully attempted to negotiate an

amended agreement, so the Supply Agreement remained the only written contract

between the parties. It recognized that on October 31, 2017, XPX emailed SkyLIFE that

it was “done with this farce” and asked that SkyLIFE not contact it again until it was

ready to negotiate in good faith. The court concluded that XPX never produced the

product described in the Supply Agreement, and SkyLIFE paid XPX for the parachutes it

actually supplied.

{¶ 53} In sum, the court concluded, XPX never produced the product called for in

the Supply Agreement, it assumed the risk of not knowing whether its “better and

cheaper” alternative would be acceptable and whether, even if acceptable, the parties

22. would form a new agreement for the production of this alternative product. It found that

XPX assumed the risk of not knowing what the standards were while at the same time

agreeing to a term that would allow SkyLIFE to unilaterally terminate the supply

agreement at will. The court dismissed XPX’s breach of contract claim.

{¶ 54} As for the promissory estoppel claim, the trial court observed that an action

for promissory estoppel cannot lie where there is a valid written agreement. But here, it

held, “the written contract had nothing to do with the ‘side deal’ the parties were working

on.” It found that XPX never produced the parachutes called for in the Supply

Agreement, and instead supplied its own “better and cheaper” design. “Under this

parallel arrangement,” the court found, “XPX shipped 50 parachutes for testing, debate

and confusion ensued as to whether these parachutes passed muster, and [XPX]

eventually sent another batch of 50 parachutes for testing.” The court concluded that

none of this was contemplated by the Supply Agreement.

{¶ 55} Because the Supply Agreement was only tangentially related to the “side

agreement,” the court explained that evaluation of XPX’s promissory estoppel claim

required review of the parties’ communications to determine whether there was (1) a

clear and unambiguous promise, (2) reasonable, foreseeable reliance by the party to

whom the promise was made, and (3) resulting injury.

{¶ 56} The court found that the parties’ communications did not provide evidence

of a clear and unambiguous promise. It emphasized that while the parties had entered

into the Supply Agreement (XPX’s agreement to supply the #SL5A55-127 parachutes),

23. the parachutes that were supplied to SkyLIFE were part of the “side deal” (XPX’s

attempt to convince SkyLIFE to accept a product other than the one specified in the

Supply Agreement). The court found that XPX had been paid for the parachutes supplied

as part of the side deal.

{¶ 57} The court found that XPX could not establish reasonable reliance on any

promises allegedly made by SkyLIFE given that it relied on hearsay as to what

constituted a passing grade for its product, it had no idea what standards were required,

how they were measured, or how the parachutes were packed and deployed. Moreover,

the court observed, XPX insisted on one hand that SkyLIFE had encouraged it to

continue its production, but on the other hand, states that SkyLIFE told it to slow down

its production. It was at this point, the court found, that “attempts began to negotiate an

amended supply agreement.” The court found that XPX assumed the risk of ramping up

production in the face of uncertainty.

{¶ 58} Finally, the trial court dismissed SkyLIFE’s counterclaim. It found that the

test parachutes SkyLIFE paid for had nothing to do with the supply agreement.

{¶ 59} The trial court entered a nunc pro tunc entry that was journalized on

May 16, 2019, clarifying that summary judgment was granted in favor of XPX on

SkyLIFE’s counterclaim and that the counterclaim was dismissed.

G. The Trial Court’s Judgment Denying Attorney Fees

{¶ 60} Following the trial court’s summary-judgment decision, SkyLIFE moved

for attorney fees and costs under R.C. 2323.51. It argued that XPX’s claims were legally

24. and factually frivolous because it was actually litigating a “side deal” unrelated to the

contract upon which its complaint was premised. It maintained that XPX never produced

the parachutes described in the contract and the only possible compensatory damages

were the costs of the 100 parachutes actually sent to SkyLIFE, for which XPX was fully

paid. SkyLIFE also insisted that the trial court’s cursory dismissal of XPX’s promissory

estoppel claim demonstrates the frivolity of the claim, and XPX’s suit was brought for

the sole purpose of seeking punitive damages to which it was not entitled.

{¶ 61} In an August 21, 2019 judgment, the court concluded that XPX did not

engage in frivolous conduct and denied SkyLIFE’s motion. It found that a business

relationship was established by the parties and while the written agreement itself did not

provide a basis for the relief sought, both sides litigated the matter extensively on the

merits without arguing that the agreement did not apply. In fact, the court found,

SkyLIFE argued that the written agreement did apply and that certain terms barred relief.

The court found that the fact that it had concluded otherwise does not mean that XPX

engaged in frivolous conduct.

H. The Appeals

{¶ 62} XPX appealed from the trial court’s May 16, 2019 judgment granting

summary judgment in favor of SkyLIFE. It assigns the following errors for our review:

1. The trial court erred in granting SkyLIFE’s Motion for Summary

Judgment because it ignored or disregarded XPX’s Evidence demonstrating

25. a genuine issue of material fact that the XPX Parachutes satisfied the Prove

Out Vendor Qualifications Standard.

2. The Trial Court Erred when it refused to consider the Konczal

and Singletary admissions, which are admissible under the Ohio Rules of

Evidence, and demonstrate genuine issues of material fact that XPX’s

parachutes satisfied the contingency clause.

3. The Trial Court Erred when it ignored or improperly disregarded

evidence Favorable to XPX in finding that XPX was pursuing a “Side

Deal.”

4. The trial court erred in granting SkyLIFE’s Motion for Summary

Judgment as to XPX’s Promissory Estoppel claim when it failed to view the

evidence in a light most favorable to XPX’s which demonstrated a genuine

issue of material fact that the XPX reasonably relied on SkyLIFE’s

representations.

{¶ 63} SkyLIFE appealed from the August 21, 2019 judgment denying its motion

for attorney fees. It assigns the following errors for our review:

1. The trial court erred as a matter of law when it failed to hold that

XPX engaged in frivolous conduct in light of the court’s legal and factual

finding that the Supply Agreement was an inadequate basis for XPXs [sic]

suit.

26. 2. The trial court erred as a matter of law in its determination that a

party’s arguments as to the adequacy of a suit during dispositive

proceedings bars a finding of frivolous conduct.

3. The trial court erred as a matter of law in its determination that

the existence of a business relationship between the parties bars a finding of

frivolous conduct.

4. The trial court erred as a matter of law when it failed to hold that

XPX engaged in frivolous conduct despite the evidence of XPX’s improper

purposes for filing and maintaining its suit and XPX’s litigation

misconduct.

II. Summary Judgment Standard

{¶ 64} Appellate review of a summary judgment is de novo, Grafton v. Ohio

Edison Co.,

,

(1996), employing the same

standard as trial courts. Lorain Natl. Bank v. Saratoga Apts.,

,

(9th Dist. 1989). The motion may be granted only when it is

demonstrated:

(1) that there is no genuine issue as to any material fact; (2) that the moving

party is entitled to judgment as a matter of law; and (3) that reasonable

minds can come to but one conclusion, and that conclusion is adverse to the

party against whom the motion for summary judgment is made, who is

entitled to have the evidence construed most strongly in his favor.

27. Harless v. Willis Day Warehousing Co.,

,

(1978), Civ.R. 56(C).

{¶ 65} When seeking summary judgment, a party must specifically delineate the

basis upon which the motion is brought, Mitseff v. Wheeler,

,

(1988), syllabus, and identify those portions of the record that demonstrate

the absence of a genuine issue of material fact. Dresher v. Burt,

,

(1996). When a properly supported motion for summary judgment is

made, an adverse party may not rest on mere allegations or denials in the pleadings, but

must respond with specific facts showing that there is a genuine issue of material fact.

Civ.R. 56(E); Riley v. Montgomery,

,

(1984). A

“material” fact is one which would affect the outcome of the suit under the applicable

substantive law. Russell v. Interim Personnel, Inc.,

,

(6th Dist. 1999); Needham v. Provident Bank,

,

(8th Dist. 1996), citing Anderson v. Liberty Lobby, Inc.,

,

,

(1986).

III. Law and Analysis

{¶ 66} XPX has appealed from the trial court’s judgment granting summary

judgment to SkyLIFE. Its first three assignments of error challenge the trial court’s

decision to ignore or disregard evidence that XPX believes demonstrate a genuine issue

of material fact precluding summary judgment against it on its breach of contract claim.

28. Its fourth assignment of error challenges the trial court’s judgment with respect to its

promissory estoppel claim.

{¶ 67} SkyLIFE in its four assignments of error challenges the trial court’s

conclusion that XPX did not act frivolously in maintaining its suit against XPX. It argues

in a motion filed April 22, 2020, that its appeal should be severed from XPX’s, and

XPX’s appeal should be dismissed as moot.

A. XPX’s Appeal

1. Evidence That XPX’s Parachutes Satisfied the Prove Out Vendor Qualifications Standard

{¶ 68} In its first assignment of error, XPX argues that the trial court erred

because it ignored evidence of admissions by SkyLIFE’s agents, indicating that XPX’s

parachutes met the undefined Prove Out Vendor Qualification Standards. XPX maintains

that there are two reasonable interpretations of the contingency clause contained in the

Supply Agreement: (1) that XPX’s supply must meet the SkyLIFE standards as a

condition precedent to the Supply Agreement becoming a binding agreement, in which

case there would be no agreement until XPX’s supply meets the standards; or (2) that

XPX’s supply meeting the SkyLIFE standards is a condition subsequent, and the

otherwise binding agreement could be defeated if the supply failed to meet the standards.

XPX insists that its supply satisfied the standards, “allowing for a valid contract under

either interpretation,” but the trial court ignored or disregarded evidence demonstrating

this fact. XPX maintains that SkyLIFE’s true reason for failing to perform under the

29. agreement was that SkyLIFE’s monthly obligation to its own client had been drastically

reduced by half, so it no longer wished to purchase the quantity specified in the Supply

Agreement.

{¶ 69} XPX argues that several key pieces of evidence demonstrate that its

parachutes met the Prove Out Vendor Qualification Standards: (1) XPX’s own

statements that it tested its parachutes internally and 100 percent of them opened and fell

at a controlled rate of speed; (2) SkyLIFE’s correspondence with its government client

informing the client that XPX’s parachutes were “tested in the USA and repeatedly

passed drop tests without any glitches”; (3) Klopping’s statement to D’Annunzio that the

parachutes tested at a 95 percent success rate, which XPX had been led to believe was a

successful test; (4) admissions from SkyLIFE’s engineer, Greg Konczal, and SkyLIFE’s

consultant, Steven Singletary, indicating that XPX’s parachutes successfully dropped and

passed testing standards; and (5) statements by Klopping congratulating XPX on the test

results and reporting that they had achieved a “Solid Oil Success Rate.”

{¶ 70} XPX contends that the contingency agreement is ambiguous because

“Prove Out Vendor Qualification Standards” is undefined. It maintains that because of

this ambiguity, parol evidence was required to interpret and explain the testing standards

and whether XPX’s parachutes met those standards. It insists that the trial court accepted

parol evidence when offered by SkyLIFE, but rejected parol evidence offered by XPX.

{¶ 71} Related to this, XPX argues that the trial court should have disregarded the

Klopping affidavit because it contradicted her deposition testimony on several key points.

30. Specifically, XPX claims that at paragraph 21 of her affidavit, Klopping averred that she

emailed the test results to XPX showing a 95 percent success rate and notified XPX that

its parachutes had not passed, but at her deposition, she admitted that she did not attach

the report and stated in her email only that the parachutes had a 95 percent success rate—

the email did not state that the parachutes had not passed. Klopping stated at paragraph

21 of her affidavit that SkyLIFE tested all 50 of the parachutes XPX provided, but

admitted at her deposition that it only tested 40 of them. At paragraph 22 of her affidavit,

Klopping averred that she told XPX that the parachutes did not pass inspection standards,

but at her deposition, she admitted telling XPX that 95 percent was a “Solid Oil Success

Rate.” And Klopping averred in her affidavit that she told XPX several times about

SkyLIFE’s formula and its 98-percent standard, but at her deposition, she admitted that

she has no understanding of the formula utilized by SkyLIFE. XPX argues that these

contradictory paragraphs in Klopping’s affidavit should have been disregarded; instead,

the trial court relied on them.

{¶ 72} SkyLIFE responds that XPX failed to perform under the Supply Agreement

because it never supplied parachutes conforming to print #SL5A55-127; instead, XPX

sent its own design, most of which were manufactured before the Supply Agreement was

executed. Accordingly, SkyLIFE insists, XPX’s nonperformance renders secondary what

standards were required, whether meeting the standards was a condition precedent or a

condition subsequent, whether the contingency clause is ambiguous, or what percentage

of success XPX’s test parachutes achieved.

31. {¶ 73} Nevertheless, SkyLIFE maintains that the contingency clause clearly and

unambiguously demonstrated the parties’ intent that SkyLIFE would purchase

conforming parachutes only if they met the Prove Out Vendor Qualification Standards. It

emphasizes that XPX produced no evidence that it manufactured such parachutes, and the

parol evidence asserted by XPX to the contrary is inadmissible because it contradicts or

changes the Supply Agreement. SkyLIFE contends that the statements of its third-party

consultant are inadmissible and do not demonstrate the parties’ understanding of the

standards or the contractual intent. It also argues that it is of no import whether the

parachutes achieved 100 percent success in XPX’s own internal tests because under the

plain language of the Supply Agreement, the parachutes were required to meet tests

performed by SkyLIFE quality control inspectors to ensure compliance with material and

dimensional requirements.

{¶ 74} To prevail on a claim for breach of contract, a party must show (1) the

existence of a binding agreement; (2) the non-breaching party performed its contractual

obligations; (3) the other party failed to fulfill its contractual obligations without legal

excuse; and (4) the non-breaching party suffered damages as a result of the breach. Ngo

v. Paramount Care, Inc., 6th Dist. Lucas No. L-05-1359,

.

“[W]here the facts are undisputed, and the only question to be resolved is whether

a breach of contract occurred, a question of law exists for the court to decide.” Bank of

New York Mellon v. Lewis, 6th Dist. Erie No. E-13-051,

.

“However, when there is a dispute as to whether the parties’ respective actions are

32. sufficient to satisfy the terms of the contract, or [w]hen a court finds an ambiguity in the

contract language, a question of fact is presented and extrinsic evidence may be

considered.” (Internal citations and quotations omitted.) LublinSussman Group LLP v.

Lee,

,

(6th Dist.).

{¶ 75} Here, the trial court found that the Supply Agreement was a binding

agreement that contained all material terms, including a “description of [the] product,

price, cost, delivery, warranties, etc.” The trial court concluded that XPX could not

prevail on its breach of contract claim as a matter of law, however, because the

agreement required XPX to supply parachutes that conformed to the print numbers

contained in the Supply Agreement, and the undisputed evidence demonstrates that XPX

failed to do so.

{¶ 76} We agree with the trial court that the Supply Agreement was a binding

written contract. There is no language in the Supply Agreement to suggest that it is

merely an agreement to test XPX’s sample parachute. While there are blanks to identify

a purchase order, there is no language to suggest that the parties’ obligations under the

agreement were dependent on separate purchase orders being issued. To the contrary, the

language of the Supply Agreement obligated XPX to supply SkyLIFE with a specified

number of parachutes, harnesses, and D-rings at specified intervals at a specified price.

See N. Side Bank & Tr. Co. v. Trinity Aviation, LLC, -- N.E.3d --,

(1st Dist.) (identifying essential terms of a contract to include the subject matter, identity

of the parties bound, consideration, price, and quantity).

33. {¶ 77} But unlike the trial court, we find that the Supply Agreement contains

various ambiguities, the resolution of which required extrinsic evidence. That extrinsic

evidence creates questions of fact precluding summary judgment.

{¶ 78} First, the Supply Agreement contains ambiguity concerning the

specifications to which the parachutes were required to be manufactured. The agreement

describes the parachutes as SkyHAWK Gen 2 parachutes, SkyLIFE print #SL5A55-127.

Klopping asserted in her affidavit that this was a typographical error—that the parachutes

were supposed to conform to print #SL5A55-122. (Notably, the print number is listed

twice in the agreement and both times it is stated as #SL5A55-127.) The trial court

accepted Klopping’s explanation as true despite the fact that D’Annunzio provided an

alternative explanation.

{¶ 79} D’Annunzio asserted in his affidavit that SkyLIFE was going to create a

new print based on the sample parachute that XPX mailed to it in May of 2017. This

assertion is corroborated by May 16, 2017 email correspondence between D’Annunzio

and Klopping in which Klopping told D’Annunzio to “send the one (1) parachute to 9750

Clark Drive Rossford, Ohio 43460. The sooner the better, so I can have the prints made

up.”

{¶ 80} It is possible that Klopping’s version of events is true: that print

#SL5A55-127 was a typographical error and that under the Supply Agreement, XPX was

obligated to supply parachutes conforming to existing print #SL5A55-122. But it is also

possible that D’Annunzio’s version of events is true: that SkyLIFE intended to draw

34. print #SL5A55-127 based off the sample parachute provided by XPX. This ambiguity in

the agreement presents a question of fact precluding summary judgment. This fact is

material to determining whether or not XPX produced parachutes that conformed to the

specifications described in the Supply Agreement—it is material to determining whether

XPX performed under the Supply Agreement.

{¶ 81} Second, the Supply Agreement contains ambiguity concerning SkyLIFE’s

Prove Out Vendor Qualifications Standards. The Supply Agreement provides that the

agreement may be postponed or declared null and void at SkyLIFE’s sole discretion if

XPX fails to meet SkyLIFE’s Prove Out Vendor Qualification Standards, but those

standards are undefined in the agreement. And the evidence before the trial court

indicates that the mode of testing utilized by SkyLIFE is not an industry standard for

testing the efficacy of parachutes, but rather is one specific to SkyLIFE’s customer’s

needs. Notably, the parties presented no documents fully describing what “Prove Out

Vendor Qualifications Standards” means.

{¶ 82} Jeffrey Potter, SkyLIFE’s chief executive officer, explained at the hearing

on SkyLIFE’s motion that as part of the aerial delivery systems it supplies, parachutes are

attached to crates containing oil cans and are dropped from an airplane. SkyLIFE is paid

based on the percentage of oil that is recovered after the cans are dropped from the air.

A drop zone coordinator calculates the amount of oil recovered and sends a report

informing SkyLIFE of the success rate. Potter explained that SkyLIFE’s contract with its

customer states that it must achieve a 95-percent success rate, therefore, SkyLIFE holds

35. its vendors to a 98-percent success rate because of the risk that SkyLIFE will not be paid

for failing delivery systems.

{¶ 83} D’Annunzio explained at the hearing that he was aware that the parachutes

would be tested with oil cans, and XPX tested the parachutes in May with and without oil

cans and achieved a 100-percent success rate. (D’Annunzio’s May 16, 2017 email to

Klopping indicates that it performed a test drop on May 11, 2017, the canopies opened,

and the box and cans landed undamaged.) He testified that SkyLIFE never told him,

however, that it required a 98-percent success rate; rather, XPX was informed by

Singletary that a 90-percent success rate was required, and was told by Klopping that the

testing was a mere formality. D’Annunzio insists that XPX was told that its parachutes

passed.

{¶ 84} “Prove Out Vendor Qualification Standards” is an undefined term in the

agreement. It is impossible to tell from the plain language of the contract what those

standards were, so it is impossible to tell whether XPX met them. We agree with XPX,

therefore, that the consideration of extrinsic evidence is necessary to discern what was

required to satisfy the contingency clause and whether, in fact, XPX’s product satisfied

the contingency clause. As with the evidence concerning the specifications, these facts

are necessary to determine whether XPX performed under the Supply Agreement and

they are disputed.

{¶ 85} We next turn to XPX’s challenge to the admissibility of certain paragraphs

of Klopping’s affidavit. The trial court did not specifically address these challenges, but

36. it cited only to Klopping’s affidavit, therefore, we must conclude that XPX’s challenges

were implicitly overruled. See, e.g., Dazley v. St. Vincent, 6th Dist. Lucas No. L-17-

1304,

, ¶ 38 (finding that trial court’s judgment, when read as a whole,

implicitly resolved party’s challenge to expert’s new testimony that arguably contradicted

his previous testimony). We review a trial court’s refusal to strike portions of an

allegedly contradictory affidavit under an abuse-of-discretion standard. Wesley v.

Walraven, 4th Dist. Washington No. 12CA18,

.

{¶ 86} While XPX argues that Klopping’s subsequent deposition testimony

demonstrates that certain paragraphs of her affidavit were inaccurate, we note an

important omission here: the transcript of Klopping’s deposition was never filed with the

court in its entirety; rather, excerpts of the deposition were attached as an exhibit. Under

Civ.R. 56(C), a motion for summary judgment may be supported or opposed using

certain documents, including “pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence, and written stipulations of fact.” But

before a deposition transcript can be considered for purposes of summary judgment,

“(1) the transcript must be filed with the court or otherwise authenticated; (2) the

deponent must sign the deposition transcript or waive signature and (3) there must be a

certification by the court reporter before whom the deposition was taken.” Zapata Real

Estate, L.L.C. v. Monty Realty, Ltd., 8th Dist. Cuyahoga No. 101171,

. A deposition that has not been filed with the court cannot be used to support the

37. motion for summary judgment. Sabol v. Richmond Hts. Gen. Hosp.,

,

(8th Dist. 1996), citing Civ.R. 5(D).

{¶ 87} Courts routinely find, however, that a party’s failure to object to the use of

an unfiled deposition transcript waives error as to the use of the excerpts of a deposition

transcript. See, e.g., David Macpherson Assoc., Inc. v. Media Marketing Advertising,

Inc., 12th Dist. Clermont No. 1065,

, *1-2 (July 27, 1983) (finding that an

objection was necessary to preserve alleged error as to the use of or manner of filing

deposition); Zapata Real Estate at ¶ 26 (“[S]ince neither party objected to the form of the

evidence submitted by the other, it could be considered by the trial court in ruling on

appellees’ motion for summary judgment within the court’s discretion.”); Burkitt v.

Shepherd, 4th Dist. Pike No. 05CA744,

(“Generally, depositions must

be filed before they can be relied on as evidence. * * * To the extent any error exists in

failing to file those depositions, however, we have not located any objection. Thus, the

issue is waived for purposes of appeal.”).

{¶ 88} Here, SkyLIFE registered no objection to XPX’s reference to deposition

transcripts that were not filed in the trial court in their entirety. While we would prefer to

consider Klopping’s deposition testimony in its entirety—and not just handpicked

pages—SkyLIFE has waived any objection here.

{¶ 89} As we explained in White v. Toledo, 6th Dist. Lucas No. L-15-1076, 2015-

Ohio-3667, ¶ 11, “[a] moving party’s contradictory affidavit cannot be used to obtain a

summary judgment.” But “[a] court must first determine whether the affidavit is merely

38. supplementing the information in the deposition testimony or is contradictory to the

previous testimony.”

If the affidavit is inconsistent without explanation,

the contradictory information cannot be considered in determining whether to grant

summary judgment; if the information in the affidavit is merely supplementary, the

affidavit can be considered.

{¶ 90} According to the excerpts attached to XPX’s summary-judgment motion,

Klopping conceded that paragraph 21 of her affidavit was incorrect—she did not send the

test results to XPX in her July 17, 2017 email to D’Annunzio and her email to

D’Annunzio did not say that the parachutes had not passed—her email stated only that

the parachutes achieved a 95 percent success rate. It does appear that the trial court relied

on paragraph 21 in its summary-judgment decision (“Defendant tested some or all of the

50 ‘test’ parachutes on July 15, 2017, found that they were unsatisfactory, and so notified

Plaintiff. (Id. at para. 21).” To the extent that there was a contradiction between

Klopping’s deposition and paragraph 21 of her affidavit in this regard—to which

Klopping conceded—it was error for the trial court to rely on this paragraph as evidence

that Klopping informed XPX that the test results were unsatisfactory.

{¶ 91} Klopping also testified at her deposition that she verbally informed

D’Annunzio that 95 percent was a “solid oil success rate.” But in paragraph 22 of her

affidavit, she said that sometime between July 17 and August 1, 2017, she told XPX in a

phone conference that the parachutes had not passed testing. In our view, this is not

necessarily a contradiction. That Klopping told XPX during a July 17, 2017 phone

39. conference that 95 percent was a “solid oil success rate” does not contradict her

testimony that sometime between July 17 and August 1, 2017, she told XPX via phone

conference that the parachutes had not passed.

{¶ 92} As to the remaining provisions cited by XPX, we find no contradictions.

Paragraph 21 of Klopping’s affidavit did not state that SkyLIFE had tested “all” 50

parachutes; it said only that SkyLIFE conducted a “test drop of the batch of 50

parachutes.” As to Klopping’s statement at deposition concerning her lack of

understanding of the formula, we do not view this as contradicting her averments in her

affidavit that she told XPX “how and why” tests are performed. While Klopping may not

have fully understood how success rates are mathematically calculated, this does not

mean that she did not know why and how tests are performed.

{¶ 93} We find XPX’s first assignment of error well-taken. We agree with XPX

that the trial court improperly engaged in fact-finding in accepting SkyLIFE’s factual

assertions and rejecting XPX’s. We also agree with XPX that paragraph 21 of

Klopping’s affidavit should have been disregarded to the extent that she averred that she

forwarded test results to XPX and emailed it to inform it that its parachutes did not pass

testing.

2. Konczal and Singletary Admissions

{¶ 94} In its second assignment of error, XPX argues that the trial court erred

because it refused to consider (1) a statement by Singletary indicating that SkyLIFE

required only a 90 percent success rate, and (2) a statement by Singletary indicating that

40. Konczal told him that the test drop had gone well, that XPX’s parachutes achieved a

success rate of 96 percent, and that the parachutes passed SkyLIFE’s standards. XPX

argues that these statements are admissions by a party-opponent under Evid.R. 801(D)(2)

or statements of present-sense impression under Evid.R. 803(1), and therefore, admissible

against SkyLIFE.

{¶ 95} SkyLIFE responds that there is no evidence in the record upon which it

may be concluded that Singletary and Konczal were agents, that they knew what

SkyLIFE’s standards were, or that they had authority to make binding statements on

SkyLIFE’s behalf. It also maintains that XPX is precluded from raising its present-sense

impression argument because it failed to raise this argument in the trial court. It further

argues that even if XPX was not precluded from raising this argument, there is no

evidence that Konczal witnessed the test drop, and it is undisputed that Singletary did not.

{¶ 96} The trial court observed in its judgment that XPX had relied on

Singletary’s “second-hand hearsay statement” that 90 percent was a passing grade. The

trial court judgment does not address the statements attributed to Konczal.

{¶ 97} An appellate court applies a de novo standard of review to a trial court’s

decision regarding whether evidence is hearsay or non-hearsay under Evid.R. 801. John

Soliday Fin. Group, L.L.C. v. Pittenger,

,

,

(5th Dist.). Under Evid.R. 801(D)(2)(d), “[a] statement is not hearsay

if: * * * [t]he statement is offered against a party and is a statement by the party’s agent

or servant concerning a matter within the scope of the agency or employment, made

41. during the existence of the relationship.” “Where admission through agency is alleged,

one must show the existence of an agency relationship, and that the statement was made

during the course of the relationship and was within the scope of the agency.” Ball v.

Consol. Rail Corp.,

,

(8th Dist. 2001).

{¶ 98} In Ball, the plaintiff sought to admit statements of an independent

contractor under Evid.R. 801(D)(2)(d). The court found that the statements were

inadmissible. It explained that “[a] principal’s control of the relationship provides the

basis for attributing the statement of an agent as an admission, and such control is absent

in an independent-contractor relationship.”

It concluded, therefore that “such

relationships do not satisfy the requirements of Evid.R. 801(D)(2)(d).”

{¶ 99} Here, however, Potter testified at the summary-judgment hearing that

Singletary was employed as a “consultant engineer.” D’Annunzio averred in his affidavit

that Singletary served as SkyLIFE’s parachute expert and conducted its product testing;

in fact, it was Singletary who requested that XPX submit a manufacturing quote to

produce the parachutes.

{¶ 100} Federal courts applying the analogous federal rule have found that

statements of a consultant may be admitted as non-hearsay under Fed.R.Civ.P.

801(d)(2)(D). See, e.g., U.S. for Use & Benefit of Remtech, Inc. v. Natl. Union Fire Ins.

Co. of Pittsburgh, PA,

(9th Cir. 2000) (finding it immaterial that statement

was made by a consultant and not a full employee because “he was still within the ambit

of D & M’s agency and was speaking within the scope of that agency by giving O’Neill

42. advice concerning the contract”); Medtronic, Inc. v. W.L. Gore & Assoc., Inc., N.D.Cal.

No. 06-04455 JSW,

, *4 (Dec. 9, 2008). See also Blacksmith

Maintenance & Repair Co. v. Calig, 10th Dist. Franklin No. 84AP-498,

,

*3 (Jan. 24, 1985) (finding that statements were admissible under Evid.R. 801(D)(2)(d)

where they had been made by person with apparent agency within the scope of his

agency). Given Singletary’s role as SkyLIFE’s consultant engineer responsible for

product testing, we find that his statements were made within the scope of that agency

and admissible as non-hearsay under Evid.R. 801(D)(2)(d).

{¶ 101} To the extent that the trial court concluded that Singletary’s statements to

D’Annunzio “that 90% was a passing grade” constituted “second-hand hearsay,” we

agree with XPX that this was error. But because the trial court did not pass upon the

admissibility of Konczal’s statements, neither will we. Accordingly, we find XPX’s

second assignment of error well-taken, in part.

3. The Trial Court’s Conclusions Respecting a “Side Deal.”

{¶ 102} In its third assignment of error, XPX argues that the trial court erred when

it concluded that XPX had assumed the risk of producing non-conforming goods and that

the back-and-forth design and testing of the parachutes was part of a “side deal” that the

parties were negotiating separate from the Supply Agreement. It maintains that while the

trial court determined that the parachutes supplied by XPX were not the same print

number referenced in the Supply Agreement—apparently accepting Klopping’s

representations that the print number contained in the Supply Agreement was a

43. typographical error—in fact, the print number contained in the Supply Agreement was a

reference to a yet-to-be-created print specification to be drawn by SkyLIFE after

receiving a parachute from XPX. XPX insists that the back-and-forth testing was integral

to the fulfillment of the Supply Agreement and once SkyLIFE approved the sample

parachute created by XPX, XPX would continue production at the levels called for under

the Supply Agreement.

{¶ 103} XPX further maintains that the trial court should have considered the

question of whether XPX reasonably relied on the Supply Agreement and representations

by SkyLIFE when it manufactured the parachutes contemplated under the Supply

Agreement. It insists that SkyLIFE accepted and paid for the test parachutes, but then

repudiated the agreement before XPX could perform. XPX claims that the risk here lay

with SkyLIFE as the acceptor of goods and as the repudiating buyer, and the trial court

instead misapplied R.C. 1302.54 against XPX.

{¶ 104} SkyLIFE responds that XPX never received any print from SkyLIFE, so it

could not have produced print #SL5A55-127 or print #SL5A55-122, therefore it is clear

that XPX did not perform under the Supply Agreement. It insists that it would have been

“impossible” for any court to find that XPX performed under the Supply Agreement “or

that its self-designed parachutes were the SkyLIFE #SLA55-127 [sic] parachutes.”

{¶ 105} As we explained before, we disagree with the trial court’s conclusion that

as a matter of law, the back-and-forth testing of XPX’s self-designed parachutes was part

of a “side deal.” We further disagree with SkyLIFE that it would be “impossible” for any

44. court to find that XPX’s self-designed parachutes were the SkyLIFE #SL5A55-127.

XPX presented summary-judgment quality evidence upon which a reasonable trier of fact

could have found that this is exactly what happened. The trial court instead chose to

accept SkyLIFE’s version of the facts over XPX’s. This was error requiring reversal.

{¶ 106} We find XPX’s third assignment of error well-taken.

4. Promissory Estoppel

{¶ 107} In its fourth assignment of error, XPX argues that the trial court erred

when it granted summary judgment in favor of SkyLIFE on its promissory estoppel

claim. Specifically, it claims that the court erred when it found that XPX never sent

SkyLIFE the specific parachutes called for in the Supply Agreement, ignoring XPX’s

evidence that SkyLIFE intended to create a print based on the parachute supplied by

XPX. It also claims that the trial court erred in concluding that XPX did not reasonably

rely on SkyLIFE’s representations given that the Supply Agreement enabled SkyLIFE to

unilaterally terminate the contract if the parachutes did not meet its Prove Out Vendor

Qualification Standards. XPX maintains that the communications between the parties

sufficed to demonstrate that it reasonably relied on SkyLIFE’s promises, at least for

purposes of establishing a genuine issue of material fact sufficient to preclude summary

judgment in SkyLIFE’s favor.

{¶ 108} SkyLIFE responds that the trial court properly dismissed XPX’s

promissory estoppel claim because there was a valid written contract in place. It also

argues that no rational trier of fact could have found reasonable reliance because the

45. correspondence shows that SkyLIFE repeatedly informed XPX that its standards required

a 98 percent oil retention rate that was never met, that SkyLIFE would not purchase

XPX’s parachutes, and that XPX should slow down production. It insists that SkyLIFE

made “zero statements” approving XPX’s parachutes.

{¶ 109} To prevail on a claim of promissory estoppel, a plaintiff must show “(1) a

clear and unambiguous promise; (2) reliance by the party to whom the promise is made;

(3) reliance is reasonable and foreseeable; and (4) injury resulting from reliance.”

Casillas v. Stinchcomb, 6th Dist. Erie No. E-04-041,

. “Promissory

estoppel is not an available remedy where the legal relationship of the parties is governed

by a valid and enforceable contract.” Kahler v. Cincinnati Inc., 1st Dist. Hamilton No.

C-140407,

, ¶ 20, citing Gibson Real Estate Mgt., Ltd. v. Ohio Dept. of

Adm. Servs., Ct. of Cl. No. 2005-07658,

. “Where parties enter into an

enforceable written contract ‘and merely dispute its terms, scope, or effect, one party

cannot recover for promissory estoppel.’”

quoting Terry Barr Sales Agency, Inc. v.

All–Lock Co., Inc.,

(6th Cir. 1996).

{¶ 110} As we concluded in our discussion of XPX’s first assignment of error, the

Supply Agreement was a valid, enforceable contract. While we have concluded that

questions of fact exist as to its “terms, scope, or effect,” or to the extent to which one

party or the other did or did not perform its obligations under the agreement, we find that

a valid and enforceable contract governed the parties’ legal relationship, therefore,

barring XPX’s promissory estoppel claim.

46. {¶ 111} Accordingly, we find XPX’s fourth assignment of error not well-taken.

B. SkyLIFE’s Appeal

{¶ 112} Given our conclusions with respect to XPX’s assignments of error, we

find SkyLIFE’s assignments of error not well-taken.

C. SkyLIFE’s Motions

{¶ 113} SkyLIFE filed a motion with this court on April 22, 2020, asking us to

sever its appeal from XPX’s appeal and to dismiss XPX’s appeal as moot. SkyLIFE

argues that XPX obtained a default judgment in North Carolina pertaining to the same

parachutes at issue in the present case. It maintains that no controversy currently exists

between the parties here because XPX has been afforded full relief and was awarded

payment for “every single parachute XPX claims it ever manufactured.”

{¶ 114} XPX responds that SkyLIFE’s motion is an improper surreply brief that

should not be considered. It argues that this court should not rule on issues that were not

litigated in the trial court, and it maintains that the North Carolina default judgment is the

subject of another Lucas County action that remains pending. XPX also insists that the

suit that is the subject of this appeal concerned the July 7, 2017 Supply Agreement—

disputes relating to a second, oral supply agreement (with different quantities, terms, and

courses of action) are not part of this lawsuit or appeal. XPX denies that the present

appeal is moot, and it challenges SkyLIFE’s motion to sever as nonsensical. It contends

that if XPX’s appeal is moot, so is SkyLIFE’s.

47. {¶ 115} We deny SkyLIFE’s motion. We agree with XPX that the issues raised in

SkyLIFE’s motion to dismiss were not litigated in the trial court and are not properly

before this court. Any overlap between the relief requested in this case and the relief

requested in the North Carolina case can be determined by the trial court on remand. To

that end, we also deny SkyLIFE’s motion to sever the parties’ appeals.

IV. Conclusion

{¶ 116} As to XPX’s first assignment of error, we conclude that in determining

that XPX failed to perform under the Supply Agreement, the trial court improperly

engaged in fact-finding by accepting SkyLIFE’s factual assertions and rejecting XPX’s.

We also agree with XPX that paragraph 21 of Klopping’s affidavit should have been

disregarded to the extent that she averred that she forwarded test results to XPX and

emailed it to inform it that its parachutes did not pass testing. We find XPX’s first

assignment of error well-taken.

{¶ 117} As to XPX’s second assignment of error, we conclude that the trial court

erred in characterizing Singletary’s statement that “90% was a passing grade” as “second-

hand hearsay.” Singletary was a consultant engineer responsible for SkyLIFE’s product

testing and his statements were made in the scope of his agency. Because the trial court

did not address statements attributed to Konczal, we decline to pass upon their

admissibility. We find XPX’s second assignment of error well-taken, in part.

{¶ 118} As to XPX’s third assignment of error, we conclude that a genuine issue

of material fact exists concerning whether XPX performed under the Supply Agreement

48. by supplying its self-designed parachutes. The trial court improperly resolved factual

disputes in favor of SkyLIFE. We find XPX’s third assignment of error well-taken.

{¶ 119} As to XPX’s fourth assignment of error, we conclude that a valid and

enforceable contract governed the parties’ legal relationship, therefore, barring XPX’s

promissory estoppel claim. We find XPX’s fourth assignment of error not well-taken.

{¶ 120} Given our conclusions respecting XPX’s assignments of error, we find

SkyLIFE’s four assignments of error not well-taken. We deny its motion to sever and to

dismiss XPX’s appeal as moot.

{¶ 121} We reverse the May 16, 2019 judgment of the Lucas County Court of

Common Pleas granting summary judgment in favor of SkyLIFE, and remand this matter

to the trial court for further proceedings. We affirm the August 21, 2019 judgment of the

Lucas County Court of Common Pleas denying SkyLIFE’s motion for attorney fees.

SkyLIFE is ordered to pay the costs of this appeal under App.R. 24 and to pay the costs

associated with its motion.

Judgment reversed, in part, and affirmed, in part.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

49. XPX Armor & Equip., Inc. v. The SkyLIFE Co., Inc. C.A. Nos. L-19-1109 L-19-1293

Mark L. Pietrykowski, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Christine E. Mayle, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

50.