Benedettini Cabinets, L.P. v. Sherwin-Williams Company

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
BENEDETTINI CABINETS, L.P.,
Plaintiff and
Counter-Defendant,
v.
SHERWIN-WILLIAMS CO.,
Defendant and
Counter-Claimant.
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Case No. 1:22-cv-00737
Judge J. Philip Calabrese
OPINION AND ORDER
Governmental intervention in the market works unintended consequences. In
2017, Sherwin-Williams acquired Valspar, a competitor in the market for paint and
coatings. To obtain approval for the acquisition from federal competition authorities,
in this case the Federal Trade Commission, Sherwin-Williams divested from certain
Valspar businesses as part of the transaction. 	At the time, Benedettini Cabinets, a
cabinetmaker outside Houston, used Valspar coatings. 	When Sherwin-Williams
acquired Valspar, the required divestiture resulted in a spin-off of Benedettini’s
supplier, and Sherwin-Williams sought to win Benedettini’s business nonetheless.
Notwithstanding the price regulators exacted for the merger, the market sought
efficiencies all the same.
Ultimately, 	Sherwin-Williams 	and 	Benedettini 	entered 	into 	a 	supply
agreement for Benedettini’s business. That agreement limits the liability of Sherwin-
Williams and disclaims various warranties. 	One of the coatings Sherwin-Williams
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sold (UV 257), Benedettini alleges, was defective because over time it produced frost,
described as a white, hazy deposit on the surface of cabinets, requiring replacement
at considerable cost. 	Because of this alleged defect, Benedettini sued Sherwin-
Williams, which counterclaimed. 	After much discovery, the parties filed cross-
motions for summary judgment on the key questions regarding the contract’s
application to this dispute.
STATEMENT OF FACTS
Without question, the parties have a supply agreement. (ECF No. 29-1.) That
agreement was in effect from November 1, 2017 to October 31, 2022. (Id., ¶ 1, PageID
#329.) Later, the parties extended it through January 2023. (ECF No. 59-7, PageID
#663.) By its terms, the supply agreement applies to certain products. 	Paragraph 2
reads:
During the Term of this Agreement, Customer shall utilize Sherwin-
Williams 	as 	Customer’s 	supplier 	for 	paints, 	coatings, 	and 	related
products utilized by Customer. 	Specifically, Customer shall purchase
its requirements for all paints, coatings, and related products from
Sherwin-Williams. 	Upon receipt of a purchase order from Customer,
Sherwin-Williams 	hereby 	agrees 	to 	sell 	to 	Customer 	the 	paints,
coatings, 	and 	related 	products 	that 	are 	set 	forth 	on 	Exhibit 	A
(collectively referred to herein as the “Products”).
(ECF No. 29-1, ¶ 2, PageID #329.) 	Exhibit A to the supply agreement lists seven
products, one of which is HG1516V86, described as “.78 VOC Clear Solvent UV.” (Id.,
PageID #332.) 	Paragraph 10 of the supply agreement, titled Representations and
Warranties, 	limited the 	warranties 	Sherwin-Williams 	provided only 	to 	certain
manufacturing defects and limits its liability. That provision reads:
Sherwin-Williams represents and warrants to Customer that all Products sold
by Sherwin-Williams to Customer shall be free of manufacturing defect in
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accordance with the Sherwin-Williams quality control specifications in effect at
the time of manufacturing. 	EXCEPT FOR THE FOREGOING, SHERWIN-
WILLIAMS DISCLAIMS ALL WARRANTIES ARISING OUT OF THE SALE
OF PRODUCTS UNDER THIS AGREEMENT, OF ANY KIND, EXPRESS OR
IMPLIED, ORAL OR WRITTEN, INCLUDING BUT NOT LIMITED TO THE
IMPLIED 	WARRANTY 	OF 	MERCHANTABILITY 	AND 	THE 	IMPLIED
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT
SHALL SHERWIN-WILLIAMS BE LIABLE FOR SPECIAL, INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES TO CUSTOMER OR TO
ANY THIRD PARTY CLAIMING BY OR THROUGH CUSTOMER. IN NO
EVENT 	SHALL 	SHERWIN-WILLIAMS 	LIABILITY 	TO 	CUSTOMER
EXCEED 	SHERWIN-WILLIAMS’ 	AGGREGATE 	NET 	AMOUNT 	OF
PRODUCTS PAID FOR BY CUSTOMER 	DURING THE TERM OF THIS
AGREEMENT.
(Id., ¶ 10, PageID #330.) 	This brief overview of the contract sets the stage for the
disputes that the parties litigate in their cross-motions for summary judgment.
If the particular coating at issue is listed on Exhibit A, then the analysis shifts
to applying Paragraph 10 of the contract. For this reason, at the outset of the case,
the Court pushed the parties to present the contract issues in dispute through an
agreed record or one 	framed with 	limited discovery. 	Eventually, 	the 	parties
persuaded the Court that such an approach would not work in this case. As the record
and the parties’ arguments show, the parties agree on little else. 	For example, the
parties dispute whether Exhibit A lists the coating at issue and other basic facts that
drive the legal analysis. 	(See, e.g., ECF No. 64-1, PageID #1140; ECF No. 69-1,
PageID #2720–21.)
In the current procedural posture, the Court construes the facts in Plaintiff’s
favor in ruling on Defendant’s motion for summary judgment on the contract defenses
it presents, and in Defendant’s favor in ruling on Plaintiff’s motion for summary
judgment on the counterclaim for a declaratory judgment. Where the record presents
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material disputes or competing versions of the facts, the Court so notes. The record
establishes the following facts relevant to resolving the pending cross-motions. The
Court does not wade further into the record than that.
A. 	Initial Negotiations
Benedettini Cabinets produces residential cabinets primarily for sale in Texas
and 	the 	surrounding 	Gulf 	South 	region. 	(ECF 	No. 	19, 	¶ 	5, 	PageID #142.)
Headquartered in Cleveland, Ohio, Sherwin-Williams is a manufacturer of paints
and coatings. (Id., ¶¶ 4–5, PageID #142; ECF No. 29, ¶ 3, PageID #317.) Before 2017,
Benedettini purchased from Valspar most of the cabinetmaker’s needed ultraviolet
coatings, a clear compound applied wet then dried with ultraviolet light. 	(ECF
No. 19, ¶¶ 7–8, PageID #143; ECF No. 29, ¶ 7, PageID #318.)
A.1. 	Sherwin-Williams Acquires Valspar
In 2016, Sherwin-Williams announced that it reached an agreement to acquire
Valspar. 	(ECF No. 19, ¶ 10, PageID #143; ECF No. 29, ¶ 8, PageID #318.) 	After
Benedettini heard this news, its general manager, Matthew Bible, contacted Tim
Jones, a sales manager with Sherwin-Williams. 	(ECF No. 19, ¶ 10, PageID #143.)
Bible sought to ensure that Benedettini could continue to receive the same UV coating
after the deal closed. 	(Id.) 	According to Benedettini, Jones “ma[de] a series of
promises that Sherwin-Williams would supply a comparable UV coating” to the
Valspar coating that Benedettini purchased before the acquisition, even though
Sherwin-Williams did not retain that business as part of the transaction. (Id., ¶ 10,
PageID #144.) 	Sherwin-Williams claims that Bible promised Jones that Sherwin-
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Williams would “obtain 100 percent of Benedettini’s business and finishing products”
if it produced a comparable UV coating. (ECF No. 63, PageID #905–07.)
When Sherwin-Williams acquired Valspar in 2017, the Valspar UV coating
division was spun off to another company. 	(ECF No. 19, ¶ 11, PageID #144; ECF
No. 29, ¶ 9, PageID #318.) 	This occurred following a Federal Trade Commission
investigation in which Sherwin-Williams agreed to sell to Axalta Coating Systems
Ltd. Valspar’s North America Industrial Wood Coatings Business. See In the Matter
of the Sherwin-Williams Co., A Corp., & the Valspar Corp., A Corp., No. 161-0116,
2017 WL 2362252, at *9 (MSNET May 26, 2017).
According to Sherwin-Williams, Benedettini sought a supply agreement in part
because it expected better prices than what it would receive from Valspar after it was
spun off. (ECF No. 29, ¶ 11, PageID #319.) Specifically, the benefits to Benedettini
included price protection and notice of any price increases. 	(ECF No. 63-1, PageID
#988–89.) For Benedettini, determinations of pricing and volatile organic compound
(“VOC”) standards for the UV coating “were critical to that . . . arrangement.” (ECF
No. 63, PageID #911.) Further, Benedettini negotiated with Sherwin-Williams for an
up-front payment from Sherwin-Williams of a sales allowance toward expanding its
facility and equipment pertaining to “certain transition expenses relating to the use
of the Sherwin-Williams Products.” 	(ECF No. 61-6, PageID #769; ECF No. 63-2,
PageID #1028.) 	Sherwin-Williams referred to this as a “financial incentive.” 	(ECF
No. 61-6, PageID #769.) Benedettini provided Sherwin-Williams with spending data
on its finishing products demonstrating that a large quantity of its purchases from
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Valspar in 2016 went toward UV coating products and that Benedettini had used
several different finishing products on its cabinets in 2016. 	(ECF No. 63, PageID
#915; ECF No. 61-5, PageID #766–68; ECF No. 61-7, PageID #770–854.)
A.2. 	Proposed Financial Terms
On 	August 	10, 	2017, 	a 	sales 	manager 	for 	Sherwin-Williams 	emailed
Benedettini 	proposed 	financials 	terms 	if 	Benedettini 	used 	Sherwin-Williams’s
finishing products. 	(ECF No. 61-6, PageID #769; ECF No. 63, PageID #918–20.)
Bible testified that, based on his interpretation of the proposed terms, he expected
that Benedettini would receive a rebate on all of its purchases from Sherwin-
Williams. 	(ECF No. 63, PageID #922.) 	Further, internal communications at
Benedettini show that executives in the company calculated the rebate that it would
receive each year with Sherwin-Williams if Benedettini had the same purchase rate
as with Valspar. (ECF No. 61-8, PageID #855.)
On August 17, 2017, Bible and Jones signed a letter of intent, which had
identical financial terms to the email of August 10, aside from a higher sales
allowance. 	(Compare ECF No. 61-6, PageID #769 with ECF No. 62, PageID #857.)
Bible testified that, based on the terms of the letter of intent, Benedettini would
receive a rebate on its purchases from Sherwin-Williams and that it contained no
exclusions for any finishing products. (ECF No. 63, PageID #928–29.) Further, Bible
testified that it “was an awesome benefit” to receive a certain rebate percentage on
all of the purchases that Benedettini could and that he expected an annual rebate.
(ECF No. 63-1, PageID #1005.) 	During the negotiations that followed, the parties
agreed on prices for certain products, including the price for UV 257, which was
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agreed to and memorialized in the draft supply agreement. 	(ECF No. 63, PageID
#931–32; ECF No. 63-1, PageID #1001–02.)
A.3. 	UV 257 Testing
Also in 2017, the parties began testing Sherwin-Williams’s UV coatings on
cabinets at Benedettini’s plant in Texas. 	(ECF No. 19, ¶ 15, PageID #145; ECF
No. 29, ¶ 12, PageID #319.) 	According to Sherwin-Williams, its employees worked
with Benedettini to ensure that the UV coatings met Benedettini’s performance
requirements. (ECF No. 29, ¶ 12, PageID #319.) During this time, Sherwin-Williams
claims that Benedettini’s representatives repeatedly told Sherwin-Williams that, if it
could supply a UV coating comparable to Valspar’s, Sherwin-Williams would gain its
exclusive business. (ECF No. 19, ¶¶ 12–15, PageID #144–45; ECF No. 29, ¶¶ 12–15,
PageID #308–09.)
From May 2017 to November 2017, Benedettini alleges that Jones and
Sherwin-Williams representatives Rick Romero, Steve Nicks, Mark Portwood, and
Alex 	Blahnik 	represented 	to 	Bible, 	Steve 	Benedettini, 	and 	other 	Benedettini
employees that Sherwin-Williams could provide the Valspar coating or a comparable
UV coating. 	(ECF No. 19, ¶¶ 14, 19 & 37, PageID #144–46 & #150.) 	Benedettini
argues that Sherwin-Williams could not have affirmatively made this representation
because Benedettini was the first customer to which Sherwin-Williams sold its
solvent-based UV coating. 	(ECF No. 69-1, PageID #2708.) 	In support of this
argument, it cites testimony from several Sherwin-Williams employees. 	(ECF
No. 67-4, PageID #1837–38; ECF No. 67-1, PageID #1326; ECF No. 67-2, PageID
#1525.) Nicks testified that “Benedettini was the first solvent-based UV coating that
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[Sherwin-Williams] sold . . . in [his] area” of Rosenberg, Texas. (ECF No. 67-4, PageID
#1837–38.) 	Portwood testified that Benedettini was the only customer with which
Sherwin-Williams had long-term sales of the UV solvent in the 2016 to 2020 time
frame. 	(ECF No. 67-1, PageID #1326.) 	Romero testified that no other Sherwin-
Williams customer used the solvent UV product before. 	(ECF No. 67-2, PageID
#1525.) 	Further, Benedettini claims that Sherwin-Williams knew that humidity
affected the coating but did not inform Benedettini of these risks based on the
testimony of Sherwin-Williams employees that the solvent UV coating was “finicky”
and “hard to control.” (ECF No. 69-1, PageID #2708; ECF No. 67-4, PageID #1836–
37; ECF No. 67-2, PageID #1460.)
Sherwin-Williams representatives visited Benedettini’s plant in 2017 and
“took over the UV coating equipment at the factory” to test and tweak the formulas.
(ECF No. 19, ¶ 15, PageID #145; ECF No. 29, ¶ 12, PageID # 319.) Benedettini alleges
that in June 2017, “[a]fter much work, Sherwin-Williams claimed to have replicated
the performance aspects of the Valspar UV coating.” 	(ECF No. 19, ¶ 15, PageID
#145.)
In October 2017, Sherwin-Williams conducted a final test, and the “results
appeared to be impressive.” 	(Id., ¶ 17, PageID #145–46.) 	The parties disagree on
who selected UV 257 as best suited for Benedettini’s needs. 	(Id.; ECF No. 29, ¶ 17,
PageID #309.) Benedettini maintains that Sherwin-Williams selected UV 257. (ECF
No. 19, ¶ 17, PageID #145–46; ECF No. 29, ¶ 14, PageID #319.) 	According to
Sherwin-Williams, Benedettini “relied upon its own review and inspection of the test
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results of the finished cabinets in approving and selecting the UV coating.” 	(ECF
No. 29, ¶ 14, PageID #319.)
B. 	The Supply Agreement
On 	October 	5, 	2017, 	Sherwin-Williams 	sent 	Benedettini 	a 	draft 	supply
agreement. 	(ECF No. 62-1, PageID #858–62.) 	Bible requested modifications to the
pricing for two items on the product list attached to the draft. (ECF No. 63, PageID
#930; ECF No. 62-3, PageID #868.) 	Sherwin-Williams claims that, on October 10,
2017, the parties signed and entered into the supply agreement (ECF No. 60-4,
¶¶ 6–9, PageID #734), which served as a requirements contract pursuant to which
Benedettini would purchase the UV coating, as well as “its requirements for all
paints, coatings, and related products from Sherwin-Williams” (ECF No. 29, ¶ 18,
PageID #320). Benedettini claims that the parties signed the supply agreement later
in October 2017 or early November 2017. (ECF No. 63-1, PageID #995.)
B.1. 	The Product List
According to Sherwin-Williams, it assigns “test rex numbers” to products in
development and testing. 	(ECF No. 29, ¶ 15, PageID #320.) 	These are temporary
numbers that Sherwin-Williams replaces with permanent “rex numbers” once a
product has been approved for commercial sale. (Id.) Sherwin-Williams alleges that
it assigned a test rex number of HG1516V86 to the UV coating it developed for
Benedettini. 	(Id.) 	After Benedettini approved the UV coating, Sherwin-Williams
claims that it assigned to the UV coating the rex number V86FH0257. 	(Id.) 	In
addition, Sherwin-Williams alleges that it assigned the rex number V86FH0258 to a
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version of the UV coating to be used as an additive to decrease gloss, and V86CH0003
to a version to be used as an additive to increase gloss. (Id.)
Exhibit A to the supply agreement sets out a defined list of products of
“[c]ertain paint, coatings, and related products to be purchased by [Benedettini]
under the Supply Agreement with agreed upon prices.” (Id., ¶ 19, PageID #320; ECF
No. 29-1, PageID #332.) Exhibit A identifies the first listed product as “HG1516V86,”
with a description “.78 VOC Clear Solvent UV.” 	(ECF No. 29, ¶ 19, PageID #320;
ECF No. 29-1, PageID #332.) Sherwin-Williams maintains that Mr. Benedettini and
Bible knew at the time that the supply agreement was executed that this product
covered the UV coating that Sherwin-Williams developed and tested in Benedettini’s
factory and was later purchased using the rex numbers V86FH0257, V86FH0258,
and V86CH0003, which Benedettini disputes. (ECF No. 29, ¶¶ 20–21, PageID #321;
ECF No. 33, ¶¶ 20–21, PageID #401.) 	Further, Sherwin-Williams alleges that
Benedettini’s purchase price for V86FH0257 “has at all times been determined by
[Benedettini] and Sherwin-Williams as the price of HG1516V86 under the Supply
Agreement.” 	(ECF No. 29, ¶ 26, PageID #322.) 	Sherwin-Williams claims that the
purchase price for V86FH0257 was the same price as HG1516V86 for the first year
of the supply agreement, which Benedettini disputes. (Id., ECF No. 33, ¶ 26, PageID
#403.)
Sherwin-Williams argues that Bible and Mr. Benedettini never looked at the
product number for the UV coating before signing the supply agreement. 	(ECF
No. 64-1, PageID #1132.) In support, it cites Bible’s testimony that his focus was on
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the pricing listed in supply agreement, not the descriptions. 	(ECF No. 63, PageID
#951–52.) 	Further, Mr. Benedettini testified that, when he signed the supply
agreement, he believed that he was committing Benedettini to buy the UV coating
that Benedettini ran and tested. 	(ECF No. 63-2, PageID #1048–49.) 	Benedettini
acknowledges that the UV coating it purchased from Sherwin-Williams under the
number V86FH0257 “is the same UV coating that Sherwin-Williams developed and
tested in Benedettini’s factory in the fall of 2017,” but argues that it was not listed on
Exhibit A of the supply agreement. (ECF No. 33, ¶ 24, PageID #402.)
B.1.a. Alleged Alterations to the UV Coating
On August 25, 2017, Sherwin-Williams created a data sheet noting that the
UV 	coating 	being 	developed 	for 	Benedettini 	was 	assigned 	a 	rex 	number 	of
V86FH0257. 	(ECF No. 68-1, PageID #2681.) 	On September 1, 2017, an internal
Sherwin-Williams email also used this rex number. 	(ECF No. 68-2, PageID #2682.)
Benedettini argues in its papers that Sherwin-Williams chose not to include the rex
number V86FH0257 in the draft supply agreement over a month later even though
it had already been assigned. (ECF No. 69-1, PageID #2712; ECF No. 62-1, PageID
#862.) Sherwin-Williams employees testified that they did not tell, recall telling, or
have knowledge of Benedettini being told about the internal test rex number. (ECF
No. 67-4, PageID #1849–50; ECF No. 67-1, PageID #1380–81; ECF No. 67-14, PageID
#1954–55; ECF No. 67-2, PageID #1468–69; ECF No. 67-3, PageID #1687; ECF
No. 67-15, PageID #2155.)
Benedettini argues that Sherwin-Williams developed a new UV coating after
the execution and effective date of the supply agreement that it claims was the UV
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coating it developed and tested at Benedettini’s facility and unilaterally changed
solvent and gloss levels of UV 257 without informing Benedettini. 	(ECF No. 69-1,
PageID #2713.) 	In support of this claim, Benedettini cites a number of internal
Sherwin-Williams emails and documents that indicate the need to modify the UV
coating formula in terms of gloss and solvent levels (ECF No. 67-16, PageID #2186;
ECF No. 68-3, PageID #2683; ECF No. 67-11, PageID #1939; ECF No. 67-12, PageID
#1941; ECF No. 67-20, PageID #2192; ECF No. 67-21, PageID #2196; ECF No. 67-22,
PageID #2198; ECF No. 67-23, PageID #2201; ECF No. 67-24, PageID #2204; ECF
No. 67-25, PageID #2209; ECF No. 67-26, PageID #2216), a summary of adjustments
made during the October test run of the product (ECF No. 62-6, PageID #880; ECF
No. 67-17, PageID #2187; ECF No. 67-18, PageID #2189), and the need to update the
rex 	number 	with 	test 	product 	formulas 	(ECF 	No. 67-13, 	PageID 	#1942; 	ECF
No. 67-19, PageID #2191).
The claimed modifications resulted in a different test rex number for the UV
coating, HG1731V86, which was not listed on Exhibit A to the supply agreement.
(ECF No. 67-13, PageID #1942–44.) Sherwin-Williams did not change the permanent
rex number. (ECF No. 67-19, PageID #2191.) Sherwin-Williams acknowledges that
HG1731V86 was a modified and updated version of the UV coating product. 	(ECF
No. 67-1, PageID #1411.) Further, Benedettini argues that the UV coating that later
caused the frosting of its cabinets was the new formula, HG1731V86, but cites
nothing in the record to support this claim. (ECF No. 69-1, PageID #2714.)
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B.1.b. The UV Coating Test
On October 19, 2017, Sherwin-Williams emailed Benedettini a list of thirteen
products that it would need during the October 23 weeklong UV coating test run at
Benedettini’s factory. (ECF No. 62-5, PageID #877–78.) Three of those products were
V86FH0257, V86FH0258, and V86CH0003, each of which Sherwin-Williams priced
at the same amount for UV coating included in the contract. (Compare ECF No. 62-1,
PageID #862 with ECF No. 62-5, PageID #878.) Benedettini ordered the products on
the emailed list for the test run. (ECF No. 63, PageID #942.) The parties ran the UV
coating at Benedettini’s factory during the week of October 23, 2017. (ECF No. 62-6,
PageID #879.) 	Benedettini requested certain modifications and additional testing,
which Sherwin-Williams performed. (ECF No. 60-1, PageID #697; ECF No. 19, ¶ 17,
PageID #145.)
B.2. 	Amendments
In 2020, Benedettini requested a discount from Sherwin-Williams because of
Covid-19. (ECF No. 60, PageID #674.) It sent Sherwin-Williams a draft amendment
to their agreement which included proposed price lists as exhibits, identifying the UV
coating as V86FH0257, but did not suggest revisions to the original Exhibit A. (Id.;
ECF No. 60-2, PageID #715; ECF No. 62-8, PageID #886–88; ECF No. 62-9, PageID
#889–92.) Although the parties did not execute this amendment, Benedettini argues
that this draft shows that its inclusion of V86FH0257 confirms that the HG1516V86
product on Exhibit A of the executed supply agreement is not UV 257. (ECF No. 69-1,
PageID #2716.)
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In 2022, the parties did amend the supply agreement, extending its terms from
October 2022 to January 2023. (ECF No. 59-7, PageID #663.) In early summer 2021,
Benedettini switched to purchasing new UV coatings from Sherwin-Williams with
numbers that were also not listed on Exhibit A. (ECF No. 63-1, PageID #1008.)
B.3. 	Exclusivity
On November 2, 2017, Bible emailed a third party and told them that
Benedettini was “moving 100% of product” to Sherwin-Williams following the UV
coating testing. (ECF No. 59-6, PageID #661.) At oral argument, the parties disputed
whether 	Bible 	was 	referring 	only 	to 	Benedettini’s 	equipment, 	as 	Benedettini
contended, or all of its product, as Sherwin-Williams argued. 	In any event, since
2017, Benedettini purchased over $5 million worth of UV 257 coating from Sherwin-
Williams under “this arrangement” and installed cabinets coated with UV 257 in over
two thousand homes in the Gulf South region. 	(ECF No. 19, ¶¶ 20 & 31, PageID
#146–47 & #149.)
In May 2017, Benedettini told Sherwin-Williams that it purchased six figures
of acetone in 2016, but the supply agreement does not mention acetone. 	(ECF
No. 61-5, PageID #766; ECF No. 62-1, PageID #858–62.) 	Benedettini rejected
multiple attempts by Sherwin-Williams to sell acetone to it. (ECF No. 67-27, PageID
#2218; ECF No. 67-28, PageID #2223; ECF No. 67-29, PageID #2226; ECF No. 67-30,
PageID #2227.) Benedettini cites testimony from Rick Romero, an account manager
at Sherwin-Williams, to support its contention that the supply agreement was not an
exclusive arrangement. (ECF No. 69-1, PageID #2717–18.) But Romero testified that
the supply agreement did not cover all of the products that Sherwin-Williams sold to
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Benedettini because “it grows as we get more products in line, because the goal for
here is to get all 100 percent of their coatings business.” 	(ECF No. 67-2, PageID
#1554.)
B.4. 	Annual Rebates
Under the supply agreement, if net sales exceeded a certain amount, Sherwin-
Williams would provide Benedettini with an annual rebate. 	(ECF No. 29, ¶ 29,
PageID #322; ECF No. 29-1, ¶ 6, PageID #329–30.) According to Sherwin-Williams,
Benedettini received annual rebates under the supply agreement on all of its
purchases for the first four years of the agreement, based on net sales that included
purchases of the UV coating. (ECF No. 29, ¶ 38, PageID #323–24.) Further, Sherwin-
Williams alleges that Benedettini “expected and was aware that it received rebates
pursuant to the Supply Agreement on its purchases of V86FH0257, V86FH0258, and
V86CH0003.” (Id., ¶¶ 39 & 44, PageID #324 & #325.)
In January 2019, Sherwin-Williams issued a rebate check to Benedettini for
the period of November 1, 2017 to October 31, 2018, which provided the rebate
amount and stated that it was based on net sales for that period. 	(ECF No. 62-11,
PageID #897; ECF No. 63-6, PageID #1110.) Benedettini deposited the rebate check
into one of its accounts. 	(ECF No. 63, PageID #962.) 	In January 2020, Sherwin-
Williams sent Benedettini the second rebate check, which Benedettini also accepted.
(ECF No. 63-7, PageID #1111–12; ECF No. 63, PageID #962.) 	In December 2020,
Benedettini accepted a third rebate check from Sherwin-Williams. 	(ECF No. 63-8,
PageID #1113; ECF No. 63, PageID #962.) In December 2021, Benedettini accepted
a fourth rebate check from Sherwin-Williams. 	(ECF No. 63-9, PageID #1114; ECF
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No. 63, PageID #962.) In the email regarding the last rebate check, Sherwin-Williams
explained to Benedettini that it was issuing a rebate check “[p]er the terms of the
Supply Agreement with Benedettini Cabinets, L.P.” (ECF No. 63-9, PageID #1114.)
Further, Sherwin-Williams provided the rebate amount, explained that it was a
certain percentage of net sales, and provided the net sales amount from the period of
November 1, 2020 through October 31, 2021. (Id.)
Benedettini claims that “Sherwin-Williams never provided Benedettini an
accounting of any rebates made to Benedettini” and disputes that it knowingly
received and accepted rebates on its purchases of V86FH0257. (ECF No. 33, ¶¶ 38–39
& ¶ 44, PageID #404 & #406.) 	But Tom Petrosewicz, who serves as Benedettini’s
outside chief financial officer, testified that the rebates were based on the sales of
“everything that we bought from Sherwin-Williams.” 	(ECF No. 63-3, PageID
#1072–74.) 	Petrosewicz provided Mr. Benedettini with estimates of annual rebates
on the assumption that the rebate would be calculated based on purchases of all
products from Sherwin-Williams, and he testified that the rebate checks were
consistent with his estimates when they came in. (Id., PageID #1073–74.) Further,
in August 2020, Bible requested that Benedettini’s accounting manager provide him
with the amount that Benedettini spent with Sherwin-Williams in the first half of
that year. (ECF No. 63-10, PageID #1116.) The accounting manager responded with
the amount Benedettini spent and the rebate it had received and offered to prepare
a report. (Id.)
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Although Bible claims to have noticed after signing the supply agreement that
the product number V86FH0257 was not on Exhibit A, Benedettini continued to
accept and expect annual rebates, and he did not point out this fact to anyone at
Benedettini or Sherwin-Williams. 	(ECF No. 63-1, PageID #1002–05.) 	Benedettini
declined 	its 	final 	rebate 	check 	because 	of 	Sherwin-Williams’s 	alternative
counterclaim for the return of the rebates. (ECF No. 63, PageID #962.) Benedettini
has not returned the four rebates it accepted from Sherwin-Williams. 	(Id., PageID
#962–63.) 	Benedettini claims that it only ever purchased one product on Exhibit A
to the supply agreement, V84F90020, described as “Clear 20 Sheen Conv Varnish,”
and it paid $53,386.80 for it. (ECF No. 33, ¶ 35, PageID #404; ECF No. 60-6, PageID
#742.)
C. 	Frost
In May 2020, Benedettini customers began posting online that their cabinets
were developing a white, hazy deposit or “frost.” 	(ECF No. 19, ¶ 22, PageID #147.)
Benedettini determined that cabinets finished with UV 257 developed this frost when
exposed to humidity, an issue Benedettini says it did not previously experience with
its cabinets. (Id.) In its papers and at oral argument, Benedettini provided an image
of the alleged frosting taken from a Google review:
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(ECF No. 69-1, PageID #2708–09.)
Benedettini notified Sherwin-Williams of the issue, and Sherwin-Williams
initiated its own investigation. 	(ECF No. 19, ¶ 24, PageID #147.) 	Sometime after
May 2020, Sherwin-Williams initially “attempted to blame a chemical [company]
neighbor of Benedettini” for causing the issue by emitting an airborne surfactant.
(Id., ¶ 24, PageID #147–48.) Sherwin-Williams dismissed that theory in March 2021.
(Id., ¶ 25, PageID #148.) During the investigation, Benedettini also discovered that
cabinets stained in a lighter finish and treated with UV 257 were yellowing. 	(Id.,
¶ 26, PageID #148.) 	Sherwin-Williams representative Kevin LaFavers represented
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to Benedettini’s plant manager Kevin Roach that other customers used UV 257
without issue. (Id., ¶ 27, PageID #148.)
Benedettini believes that Sherwin-Williams switched it to a different UV
coating, UV 292, in March 2021. 	(Id., ¶ 28, PageID #148.) 	At that time, Mark
Portwood, an employee of Sherwin-Williams, allegedly informed Benedettini that UV
257 was not intended for use on light stains. 	(Id., ¶ 30, PageID #149.) 	By then,
Benedettini had applied UV 257 to light stains for at least four years “at Sherwin-
Williams’s 	direction.” 	(Id.) 	In 	June 	2021, 	Sherwin-Williams 	started 	selling
Benedettini another coating, UV 297, for darker stained cabinets. 	(Id., ¶¶ 28–29,
PageID #148.)
To date, Benedettini has had to remove and refinish cabinets in several homes
due to frosting. 	(Id., ¶ 31, PageID #149.) 	This process typically costs more than
$15,000 per home. 	(Id.) 	At oral argument, Benedettini alleged that the frosting
occurred in over 153 homes. According to Benedettini, in May 2020, both a scientist
and a sales director at Sherwin-Williams internally raised an issue with one of the
ingredients 	of 	the 	UV 	coating, 	but 	Sherwin-Williams 	allegedly 	ignored 	both
suggestions and did not inform Benedettini. (ECF No. 69-1, PageID #2709–10.)
Benedettini alleges that, in 2021, Sherwin-Williams identified an ingredient
in UV 257 that might be the cause of the issue. 	(Id., PageID #2710.) 	According to
Benedettini, Sherwin-Williams requested that the manufacturer of the ingredient
test whether the ingredient “broke down into the chalky substance,” which confirmed
that the ingredient “was chalking Benedettini’s cabinets installed in thousands of
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homes.” 	(Id., PageID #2710–11.) 	When Sherwin-Williams switched the product it
supplied to Benedettini from UV 257 to UV 292 and UV 297, the only ingredient
change was the one that allegedly caused the frosting. (Id., PageID #2711.)
STATEMENT OF THE CASE
Plaintiff filed an amended complaint asserting four claims for relief:
Count One: 	fraud/fraudulent inducement;
Count Two: 	negligent misrepresentation;
Count Three: breach of express warranty; and
Count Four: breach of implied warranties.
(ECF No. 19.) It alleges that Defendant and its employees misrepresented UV 257’s
performance capabilities to induce Benedettini to purchase the product. (Id., ¶¶ 36–
47, PageID #150–53.) Plaintiff argues that Defendant breached express and implied
warranties because UV 257 frosted on Benedettini’s cabinets. (Id., ¶¶ 49–59, PageID
#153–55.)
Defendant filed an amended counterclaim asserting two claims for relief: 	a
declaratory judgment (Count One); and unjust enrichment (Count Two). 	(ECF
No. 29.) 	Specifically, Defendant seeks a declaratory judgment that Benedettini’s
purchases of the UV coating were subject to the exclusions and limitations of the
supply agreement. 	(Id., ¶¶ 50–55, PageID #326–27.) 	In its alternative claim for
unjust enrichment, Defendant alleges that Plaintiff accepted rebates, favorable
pricing, and prepaid shipments without objection. (Id., ¶¶ 56–60, PageID #327–28.)
If the supply agreement does not govern the parties’ relationship, Defendant requests
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that the Court order restitution of all of the rebates, paid shipping, and other benefits
that Sherwin-Williams provided in the course of its relationship with Benedettini.
(Id.)
Previously, Defendant moved for a partial judgment on the pleadings on
Counts One, Two, and Three. 	(ECF No. 34.) 	Defendant argued that the supply
agreement barred Plaintiff’s claims for fraud, negligent misrepresentation, and
express warranty and that the economic loss rule barred its tort claims. 	(ECF
No. 34-1, PageID #429–33.) 	Also, Defendant argued that Count One failed to plead
fraud with particularity under Rule 9(b), Plaintiff failed to plead the elements of its
fraud 	and 	negligent 	misrepresentation 	claims, 	and 	that 	Plaintiff’s 	negligent
misrepresentation claim was untimely. (Id., PageID #434–44.) The Court granted in
part and denied in part the motion. (ECF No. 45.) Specifically, the Court dismissed
Count One of Plaintiff’s amended complaint except with regard to a representation
made by Mr. Karnstein on or about October 10, 2017. (Id., PageID #589.) The Court
denied the rest of the motion. (Id.)
The parties filed cross-motions for summary judgment. 	(ECF No. 64; ECF
No. 69.) 	Specifically, Defendant filed a motion for summary judgment raising
contractual defenses. 	(ECF No. 64.) 	Plaintiff filed its own motion for summary
judgment on Count One of the amended counterclaims, Defendant’s request for a
declaratory judgment regarding the contractual limitations of the supply agreement.
(ECF No. 69.) On October 2, 2025, the Court held oral argument on the parties’ cross-
motions for summary judgment.
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ANALYSIS
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). On a motion for summary judgment, the Court
must view the evidence in the light most favorable to the non-moving party.
Kirilenko-Ison v. Board of Educ. of Danville Indep. Schs., 974 F.3d 652, 660 (6th Cir.
2020) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)).
The moving party has the initial burden of establishing that there are no
genuine issues of material fact as to an essential element of the claim or defense at
issue. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479–80 & n.12 (6th Cir. 1989);
Chappell v. City of Cleveland, 584 F. Supp. 2d 974, 988 (N.D. Ohio 2008). 	After
discovery, summary judgment is appropriate if the nonmoving party fails to establish
“an element essential to that party’s case and upon which that party will bear the
burden of proof at trial.” 	Tokmenko v. MetroHealth Sys., 488 F. Supp. 3d 571, 576
(N.D. Ohio 2020) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
The Court’s function at this stage is not “to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “The party seeking
summary judgment has the initial burden of informing the court of the basis for its
motion” and identifying the portions of the record “which it believes demonstrate the
absence of a genuine issue of material fact.” Tokmenko, 488 F. Supp. 3d at 576 (citing
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Celotex Corp., 477 U.S. at 322). 	Then, the nonmoving party must “set forth specific
facts showing there is a genuine issue for trial.” 	Id. (citing Anderson, 477 U.S. at
250). “When the moving party has carried its burden under Rule 56(c), its opponent
must do more than show there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., 475 U.S. at 586.
If a genuine dispute exists, meaning that “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party,” summary judgment
is not appropriate. 	Tokmenko, 488 F. Supp 3d at 576 (citing Anderson, 477 U.S. at
250). However, if “the evidence is merely colorable or is not significantly probative,”
summary judgment for the movant is proper. Id. The “mere existence of some factual
dispute between the parties will not defeat an otherwise properly supported motion
for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Anderson,
477 U.S. at 247–48). 	“Just as a plaintiff may not rely on conclusory allegations to
proceed past the pleading stage, so too a plaintiff may not rely on conclusory evidence
to proceed past the summary-judgment stage.” Viet v. Le, 951 F.3d 818, 823 (6th Cir.
2020) (cleaned up) (citations omitted). 	“Conclusory statements unadorned with
supporting facts are insufficient to establish a factual dispute that will defeat
summary judgment.” 	Id. (quoting Alexander v. CareSource, 576 F.3d 551, 560 (6th
Cir. 2009)).
To determine whether a genuine dispute about material facts exists, it is not
the Court’s duty to search the record; instead, the parties must bring those facts to
the Court’s attention. See Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1087 (6th
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Cir. 1996). Ultimately, the Court must determine “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251.
“[W]here, as here, the parties filed cross-motions for summary judgment, ‘the
court must evaluate each party’s motion on its own merits, taking care in each
instance to draw all reasonable inferences against the party whose motion is under
consideration.’” McKay v. Federspiel, 823 F.3d 862, 866 (6th Cir. 2016) (quoting Taft
Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991)). 	Therefore, cross-
motions for summary judgment do not warrant granting summary judgment unless
one of the parties is entitled to judgment as a matter of law on facts that are not
genuinely disputed. Langston v. Charter Twp. of Redford, 623 F. App’x 749, 755 (6th
Cir. 2015).
I. 	Applicability of the Supply Agreement
Sherwin-Williams 	presents—and 	Benedettini 	disputes—two 	arguments
regarding its assertion that the warranty provision in Paragraph 10 of the supply
agreement applies to its sale of UV 257 coating to Benedettini: 	(1) the supply
agreement is a requirements contract applying to all paints, coatings, and related
products that Sherwin-Williams sold to Benedettini over the contract period; and (2)
the product listed in Exhibit A of the supply agreement titled HG1516V86 is the same
product as the UV 257 coating that Sherwin-Williams sold to Benedettini. 	(ECF
No. 64-1, PageID #1140–54; ECF No. 69-1, PageID #2720–36; ECF No. 74, PageID
#2848–68; ECF No. 75, PageID #2876–90.) The Court need not reach the second issue
to resolve the pending cross-motions.
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As it did when it moved for judgment on the pleadings (ECF No. 34-1, PageID
#421), Sherwin-Williams argues that the supply agreement, as a requirements
contract, governs all business with Benedettini (ECF No. 64-1, PageID #1141).
Benedettini 	contends 	that 	the 	four 	corners 	of 	the 	contract 	preclude 	such 	an
interpretation, as does the evidence that Sherwin-Williams sold a different UV
coating to Benedettini. (ECF No. 69-1, PageID #2713.)
I.A. 	Ordinary and Plain Meaning
The 	Court 	begins 	with 	the 	ordinary 	and 	plain 	meaning 	of 	the 	supply
agreement. Paragraph 13 provides that the parties agree that Ohio law governs any
dispute arising out of the contract. 	(ECF No. 29-1, PageID #331.) 	Generally,
“contracts should be construed so as to give effect to the intention of the parties.”
Aultman Hosp. Ass’n v. Community Mut. Ins. Co., 46 Ohio St. 3d 51, 544 N.E.2d 920,
923 (Ohio 1989); Eastham v. Chesapeake Appalachia, L.L.C., 754 F.3d 356, 361 (6th
Cir. 2014) (quoting Sunoco, Inc. (R&M) v. Toledo Edison Co., 129 Ohio St. 3d 397,
2011-Ohio-2720, 953 N.E.2d 285, ¶ 37). The parties’ intent is “presumed to reside in
the language they chose to employ in the agreement.” Anzalaco v. Graber, 2012-Ohio-
2057, 970 N.E.2d 1143, ¶ 19 (Ohio Ct. App.) (citing Kelly v. Medical Life Ins. Co., 31
Ohio St. 3d 130, 509 N.E.2d 411, 413 (1987)). 	To discern the parties’ intent, courts
look to the plain and ordinary meaning of the language in their agreement. Eastham,
754 F.3d at 361. 	A contract “is to be read as a whole and the intent of each part
gathered from a consideration of the whole.” Saunders v. Mortensen, 101 Ohio St. 3d
86, 2004-Ohio-24, 801 N.E.2d 452, ¶ 16 (citation omitted).
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According to the normal rules of contract construction under Ohio law, “an
interpretation that would render a provision meaningless ‘is neither acceptable nor
desirable.’” 	State v. Bethel, 110 Ohio St. 3d 416, 2006-Ohio-4853, 854 N.E.2d 150,
¶ 51 (quoting Hybud Equip. Corp. v. Sphere Drake Ins. Co., 64 Ohio St. 3d 657, 597
N.E.2d 1096, 1103 (1992)). 	Therefore, the Court “must give effect to each provision
of the contract” if doing so is reasonable. Cincinnati Ins. Co. v. CPS Holdings, Inc.,
115 Ohio St. 3d 306, 2007-Ohio-4917, 875 N.E.2d 31, ¶ 17 (citing Expanded Metal
Fire-Proofing Co. v. Noel Constr. Co., 87 Ohio St. 428, 101 N.E. 348, 350 (1913));
Savedoff, 524 F.3d at 763 (quoting Stone v. National City Bank, 106 Ohio App. 3d
212, 665 N.E.2d 746, 752 (1995)).
I.A.1. Definition of “Products”
“Although words and terms within a contract will be given their ordinary
meaning, . . . when parties to a contract have given a word a specific meaning by
expressly defining it in the contract, that definition will generally override whatever
definition might otherwise be established by an examination of the word’s ordinary
meaning or common usage.” Sutton Bank v. Progressive Polymers, L.L.C., 161 Ohio
St. 3d 387, 2020-Ohio-5101, 163 N.E.3d 546, ¶ 18 (citations omitted). Further, “when
a word is expressly defined, then that word should be given its expressed meaning
whenever it is used in the contract.” Id. (citations omitted).
As previously noted, Paragraph 2 of the supply agreement reads:
During the Term of this Agreement, Customer shall utilize Sherwin-
Williams 	as 	Customer’s 	supplier 	for 	paints, 	coatings, 	and 	related
products utilized by Customer. 	Specifically, Customer shall purchase
its requirements for all paints, coatings, and related products from
Sherwin-Williams. 	Upon receipt of a purchase order from Customer,
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Sherwin-Williams 	hereby 	agrees 	to 	sell 	to 	Customer 	the 	paints,
coatings, 	and 	related 	products 	that 	are 	set 	forth 	on 	Exhibit 	A
(collectively referred to herein as the “Products”).
(ECF No. 29-1, PageID #329.) 	As the Court observed in its ruling on Defendant’s
motion for judgment on the pleadings, the language of the third sentence of this
paragraph contradicts the first two. 	(ECF No. 45, PageID #570.) 	Specifically, the
first two sentences provide that Benedettini will purchase its requirements for paints,
coatings, and related products from Sherwin-Williams. But the third sentence limits
the products that Sherwin-Williams agrees to sell to Benedettini to those listed on
Exhibit A to the supply agreement and, for them, uses the defined term “Products.”
It provides that “Sherwin-Williams hereby agrees to sell to Customer the paints,
coatings, and related products that are set forth on Exhibit A (collectively referred to
herein as the ‘Products’).” (ECF No. 29-1, PageID #329 (emphasis added).)
I.A.2. Structure of the Supply Agreement
Other provisions of the supply agreement use the term “Products,” including
those relating to price, payment, delivery, and warranties. 	(Id., PageID #329–30.)
For example, Paragraph 4 regarding payment states that it applies to “all Products
purchased by Customer from Sherwin-Williams during a specific calendar month.”
(Id., PageID #329.) 	This provision contains a two-percent discount for timely
payment. (Id.) Similarly, the rebate provision in Paragraph 6 calculates the payment
to Benedettini based on net sales of Products. 	(Id., ¶ 6.B., PageID #330.) 	And the
representations and warranties clause in Paragraph 10 limits the warranty for
manufacturing defects to Products and disclaims all other warranties and the liability
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of Sherwin-Williams based on the sale of Products—presumably the defined term.
(Id., ¶ 10, PageID #330.)
Sherwin-Williams argues that, “under Ohio law, a contract that uses the
language of ‘requirements’ is ‘unambiguously’ a requirements contract.” 	(ECF
No. 64-1, PageID #1141.) In support of this contention, it cites a case that defines a
requirements contract 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.” Bass, Hurwitz & Poliner, CPA’s v. State,
No. 88AP-1120, 1989 WL 87078, at *2 (Ohio Ct. App. Aug. 3, 1989) (citing Fuchs v.
United Motor Stage Co., 135 Ohio St. 509, 21 N.E.2d 669, 670 (1939)). 	But the
contract in that case simply provided that the appellant would supply “the State’s
requirements” for nursing home audits in particular districts during the agreement’s
term. Id. Because of the internal inconsistency in Paragraph 2, the Court cannot say
that the language of the supply agreement “unambiguously” makes it a requirements
contract. 	Nor does the Court find availing the other arguments that Sherwin-
Williams makes to overcome the plain language of the supply agreement.
I.B. 	Parol Evidence
Ohio adopts the Uniform Commercial Code’s rule for parol or extrinsic evidence
that a final written agreement “may be explained . . . by course of performance, course
of dealing, or usage of trade.” 	Ohio Rev. Code § 1302.05(A). 	Such evidence may be
“relevant in ascertaining the meaning of the parties’ agreement, may give particular
meaning to specific terms of the agreement, and may supplement or qualify the terms
of the agreement.” 	Ohio Rev. Code § 1301.303(D). 	Under this definition, parol or
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extrinsic evidence does not depend on an ambiguity in the contract. 	Instead, such
evidence shows how the parties understood their agreement in practice. 	“A finding
of ambiguity is not necessary for the admission of evidence of usage of trade, course
of dealing, or course of performance.” 43 Ohio Jur. 3d Evidence and Witnesses § 527
(2025).
Sherwin-Williams argues that the parties’ course of performance and usage of
trade demonstrate that the parties intended the supply agreement to apply to
purchases of UV 257. (ECF No. 64-1, PageID #1144.) Benedettini contends that the
supply agreement precludes Sherwin-Williams from referencing such evidence and
that such evidence does not support its argument in any event. 	(ECF No. 69-1,
PageID #2721–22.) 	At oral argument, Benedettini cited United States Fidelity &
Guaranty Co. v. St. Elizabeth Medical Center, 129 Ohio App. 3d 45, 716 N.E. 2d 1201,
1208 (1998), to argue that “courts may not use extrinsic evidence to create an
ambiguity; rather, the ambiguity must be patent, i.e., apparent on the face of the
contract.” See also Schachner v. Blue Cross & Blue Shield of Ohio, 77 F.3d 889, 893
(6th Cir. 1996). 	But the Court does not determine that the supply agreement is
ambiguous. Nor does the extrinsic evidence seek to create an ambiguity or contradict
the terms of the supply agreement.
Instead, the extrinsic evidence in this case has relevance to ascertain the
meaning of the parties’ agreement and gives meaning to the specific terms of the
parties’ agreement. See Ohio Rev. Code § 1301.303(D). “The unambiguous terms of
a contract cannot be contradicted by extrinsic evidence such as course of performance,
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though they can be explained or supplemented by such evidence.” Foley v. LG Elecs.,
Inc., No. 1:16-cv-1479, 2017 WL 2691790, at *4 (N.D. Ohio June 22, 2017) (citing Ohio
Rev. Code § 1302.05).
I.B.1. Amendment Procedure
As a threshold matter, Benedettini argues that Sherwin-Williams cannot use
evidence of course of performance and usage of trade, arguing that Paragraph 11 of
the supply agreement contains “a special procedure . . . that the parties would have
to use to amend or modify the Supply Agreement.” 	(ECF No. 69-1, PageID #2721;
ECF No. 75, PageID #2878 & #2880.) 	Benedettini cites Section 1302.12(B) of the
Ohio Revised Code, which provides in relevant part that “[a] signed agreement which
excludes modification or rescission except by a signed writing cannot be otherwise
modified or rescinded.” 	Benedettini claims that the parties had followed this
procedure on previous occasions. (ECF No. 69-1, PageID #2721.)
Paragraph 11 of the supply agreement reads: 	“This Agreement may be
amended and/or modified only by a written document, signed by Sherwin-Williams
and Customer that specifically states it is an amendment to this Agreement.” (ECF
No. 29-1, ¶ 11, PageID #330.) 	Based on this provision, Benedettini argues that
Paragraph 11 “builds an insurmountable wall around the definition of ‘Products’” and
that “[n]either usage of trade nor course of dealing can change that definition.” (ECF
No. 69-1, PageID #2721–22.) 	But the Court may assess course of performance and
usage of trade to explain or supplement a final written agreement to give “particular
meaning to specific terms of the agreement.” 	Ohio Rev. Code § 1301.303(D). 	Such
evidence assists in understanding how the parties understood the terms of their
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contract. 	That evidence does not represent or work a modification, recission, or
amendment of any term of the supply agreement. Therefore, Paragraph 11 does not
bar the Court from assessing course of performance and usage of trade in assessing
how the parties understood certain terms in their contract. 	Indeed, Paragraph 11
contains no language to that effect. (ECF No. 29-1, ¶ 11, PageID #330.)
The cases on which Benedettini relies are not to the contrary. 	In Watkins &
Son Pet Supplies, Inc. v. Iams Co., 254 F.3d 607, 613–14 (6th Cir. 2001), the court
determined that the plaintiff could not introduce evidence of additional terms that
contradicted the integrated agreement. 	Here, Sherwin-Williams does not look to
extrinsic evidence to introduce additional terms or contradict the supply agreement
but, instead, to show how the parties performed under it. In General Electric Co. v.
S & S Sales Co., No. 1:11-cv-00837, 2013 WL 174559, at *2 (N.D. Ohio Jan. 16, 2013),
the court determined that the plaintiff could not introduce evidence of a modification
of shipments to alter its contractual obligations. 	In this case, the point is not to
modify or reform the supply agreement—Paragraph 11 forecloses doing so—but to
understand the terms of the supply agreement and its plain language. In Hamilton
Insurance Services, Inc. v. Nationwide Insurance Cos., 86 Ohio St. 3d 270, 714 N.E.2d
898, 901 (1999), the Ohio Supreme Court merely stated that, when assessing extrinsic
evidence, “there can be no implication inconsistent with the express terms” of a
written 	contract. 	And 	the 	Court’s 	decision 	in 	RAM 	Construction 	Services 	of
Cleveland, LLC v. Key Construction, Inc., 624 F. Supp. 3d 884, 892–93 (N.D. Ohio
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32
2022), had to do with a failure to follow proper contractual procedures for change
orders, which is not at issue here.
Even if considered a modification, courts in this Circuit acknowledge that the
parties’ course of performance can modify a contract “[e]ven where, as here, an
agreement requires all modifications to be in writing.” 	Marietta Health Care
Physicians, Inc. v. Yoak, No. 2:19-cv-5626, 2022 WL 255664, at *8 (S.D. Ohio Jan. 27,
2022). 	Therefore, Paragraph 11 does not preclude assessing the parties’ course of
performance or trade usage in this case.
I.B.2. Course of Performance
“Where an agreement involves repeated occasions for performance by either
party with knowledge of the nature of the performance and opportunity for objection
to it by the other, any course of performance accepted or acquiesced in without
objection is given great weight in the interpretation of the agreement.” Restatement
(Second) of Contracts § 202(4) (1981). 	Where the course of performance results in
multiple inferences that suggest contradictory evidence of the agreement’s terms,
such evidence does “not satisfy the initial burden . . . to demonstrate the absence of a
genuine issue of material fact on the disputed term . . . as summary judgment
requires.” 	Kevin O’Brien & Assocs. Co., LPA v. PLS Fin. Sols. Of Ohio, 2024-Ohio-
3170, 251 N.E.3d 712, ¶ 31 (Ohio Ct. App.).
Section 1301.303(A) of the Ohio Revised Code defines course of performance as
“a sequence of conduct between the parties to a particular transaction that exists”
where:
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(1) 	The agreement of the parties with respect to the transaction
involves repeated occasions for performance by a party; and
(2) 	The other party, with knowledge of the nature of the performance
and opportunity for objection to it, accepts the performance or
acquiesces in it without objection.
Typically, course of performance presents questions of fact; however, courts can still
resolve issues at the summary judgment stage by analyzing course of performance
where there is no genuine dispute of material fact. 	See, e.g., Novelis Corp. v.
Anheuser-Busch, Inc., 559 F. Supp. 2d 877, 889 (N.D. Ohio 2008).
Sherwin-Williams 	points 	to 	several 	pieces 	of 	evidence 	that 	it 	claims
demonstrate that the parties “intended the Supply Agreement to apply to UV 257 and
all other products.” (ECF No. 64-1, PageID #1145.)
I.B.2.a. The Amendment
First, the parties signed an extension to the supply agreement at the end of
the contract term and after Benedettini filed this lawsuit. 	(ECF No. 59-7, PageID
#663.) 	According to Sherwin-Williams, this fact shows that the supply agreement
applied to products other than those listed on Exhibit A. (Id., PageID #1145 & #1154;
ECF No. 59-7, PageID #663.) To support this contention, Sherwin-Williams cites two
excerpts from Bible’s deposition. (ECF No. 64-1, PageID #1145.) But the page it cites
for the first excerpt appears to be missing from the record. (See ECF No. 63-1, PageID
#1003–04.) 	The second relates to the signing of the supply agreement, not its
amendment, and questions Bible on the fact that Benedettini purchased hundreds of
items from Sherwin-Williams, but Exhibit A only listed six. 	(ECF No. 63, PageID
#949–50.)
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Sherwin-Williams also cites Bible’s deposition testimony that Benedettini
wanted to extend the supply agreement and continue to buy products from Sherwin-
Williams because “[it had] to have product to finish cabinets.” (Id., PageID #966–67.)
Also, he testified that Benedettini used UV coatings other than UV 257 since 2021,
(ECF 	No. 	63-1, 	PageID 	#1008), 	but 	still 	signed 	the 	extension. 	In 	response,
Benedettini argues that the amendment to the supply agreement “reaffirms the
continuing force of the Supply Agreement, such as Exhibit A’s list of Products” and
forecloses an argument that “that list of Products had grown.” (ECF No. 75, PageID
#2882.) 	At bottom, the amendment to the supply agreement does not change the
fundamental positions of the parties. It does little more than extend the agreement
for a brief time. 	Beyond that, for all the ink (so to speak) the parties spend on this
issue, it does not provide evidence one way or another on how the parties understood
or acted under the contract.
I.B.2.b. Sales Allowance
Sherwin-Williams cites Benedettini’s acceptance of a sales allowance after it
entered into the supply agreement, which it argues “was expressly an incentive for
Benedettini to change from Valspar and enter into a five-year contract with Sherwin-
Williams as its supplier.” (ECF No. 64-1, PageID #1146.) Sherwin-Williams argues
that no reasonable jury would believe that Benedettini received this payment “with
no corresponding obligation to purchase its paint and coating requirements from
Sherwin-Williams.” 	(Id., PageID #1146–47.) 	Further, it cites Paragraph 8 of the
supply agreement, which states that, in the occurrence of any acceleration events, the
“Customer shall refund to Sherwin-Williams a pro-rata portion of the amount
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35
provided as the Sales Allowance as calculated in accordance with Paragraph 8(B) of
this Agreement,” which referred to the refund calculation. (ECF No. 29-1, ¶ 8, PageID
#330.)
Benedettini does not dispute that it received the sales allowance for which the
supply agreement provided. This undisputed fact shows that the parties understood
that the supply agreement governed their relationship. But it does not directly speak
to the core issue in dispute—whether the contract limits liability for UV 257. On that
score, the Court cannot weigh the significance of this fact or make any inference about
how a jury might evaluate it. Anderson, 477 U.S. at 249.
I.B.2.c. Pricing
Sherwin-Williams contends that Benedettini “took advantage of the Supply
Agreement” for its purchases of UV 257. (ECF No. 64-1, PageID #1145.) Paragraph 3
of the supply agreement provides in relevant part that “the prices for the Products
shall be the prices specified on Exhibit A” and that “Sherwin-Williams may increase
the prices of each of the Products in Sherwin-Williams’ sole discretion, provided that
in no event shall prices for the Products be increased . . . on more than one occasion
during any contract year.” 	(ECF No. 29-1, ¶ 3, PageID #329.) 	The undisputed
evidence 	consisting 	of 	invoices 	and 	purchase 	orders 	shows 	that 	Benedettini
purchased UV 257 at the price listed on Exhibit A for the first year of the supply
agreement. 	(ECF No. 62-7; ECF No. 63-11.) 	Bible did not dispute this fact at his
deposition. 	(ECF No. 63, PageID #960.) 	Further, as Sherwin-Williams points out
(ECF No. 64-1, PageID #1146), Benedettini points to no evidence that Sherwin-
Williams failed to follow this provision of the supply agreement.
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Benedettini argues that the fact that it initially paid the same price for UV 257
as the price listed for HG1516V86 on Exhibit A does not establish that the two
products were the same because “[d]ifferent products can have the same price.” (ECF
No. 69-1, PageID #2734.) 	Therefore, it argues that “[p]ricing sends, at most, an
ambiguous signal.” 	(Id.) 	In Novelis, 559 F. Supp. 2d at 892, the plaintiff made a
similar argument that evidence that it accepted or acquiesced to a certain price “is
one inference that can be drawn from the course of performance” and renders the
question a “factual dispute appropriate for jury resolution.” 	The court disagreed,
determining that it was undisputed that “the parties consistently exhibited their
intent that the price . . . was to be calculated in the same manner as the other
[products].” 	Id. 	On summary judgment, it is undisputed that Benedettini initially
paid the same price for UV 257 as the price listed for HG1516V86 on Exhibit A to the
supply agreement. 	As in Novelis, this uncontested fact bears on the course of
performance without necessarily requiring fact finding by a jury and lends support to
Defendant’s position.
I.B.2.d. Annual Rebates
Sherwin-Williams also argues that Benedettini benefitted from the annual
rebates 	provided 	in 	the 	supply 	agreement. 	(ECF 	No. 	64-1, 	PageID 	#1145.)
Paragraph 6 provides for an annual rebate on net sales that hit a certain target. (ECF
No. 29-1, ¶ 6, PageID #329–30.) 	Sherwin-Williams points out that “both parties
treated all products as part of ‘Net Sales’ for purpose of rebates.” 	(ECF No. 64-1,
PageID #1146.) 	It provides undisputed evidence of email and text exchanges with
Benedettini in which Bible acknowledges the amount of the rebate. (ECF No. 62-11;
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ECF No. 63-7; ECF No. 63-8; ECF No. 63-9.) Further, Bible testified that Benedettini
accepted rebates for the first four years of the supply agreement. 	(ECF No. 63,
PageID #961–62.) 	Regarding the amount of the rebates, Tom Petrosewicz, who
provides outside CFO services to Benedettini, testified that they were based on sales
of “everything that we bought from Sherwin-Williams,” and he provided estimates to
Mr. Benedettini based on this assumption. 	(ECF No. 63-3, PageID #1072–74.)
Therefore, Sherwin-Williams contends that Benedettini treated its “purchases as
‘Products,’” whether formally listed on Exhibit A or not, and has not returned any of
the rebates it accepted. (ECF No. 64-1, PageID #1146.)
I.B.2.d.i. Rebate Calculations
Benedettini argues that it did not know how Sherwin-Williams calculated
rebates and that under Paragraph 6 of the supply agreement Sherwin-Williams had
responsibility for calculating the rebates based on its sales records. 	(ECF No. 69-1,
PageID #2735; ECF No. 29-1, PageID #329–30.) 	Benedettini claims that Sherwin-
Williams did not send “an accounting or reconciliation of the sales that were included
to calculate the rebate amount” when it paid the rebates to Benedettini. 	(ECF
No. 69-1, PageID #2735.) 	It cites the deposition of LaFavers (a representative of
Sherwin-Williams) in which he testified that Sherwin-Williams did not provide
Benedettini with a breakdown of how the rebates were calculated, but instead
delivered a check without backup data. (ECF No. 67-14, PageID #2013–14.) Another
Sherwin-Williams representative, Mark Portwood, testified to the same effect, adding
that there might have been conversations with someone at Benedettini “that involved
a breakdown, because Benedettini had a separate rebate with their abrasives,
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through their abrasives manufacturer.” (ECF No. 67-1, PageID #1435–36.) Further,
Benedettini claims that Sherwin-Williams “might be exercising less than its full
rights under the Supply Agreement as a customer relations tool,” something it did
with shipping as an inducement to keep business—meaning it might have paid
rebates in excess of what the supply agreement strictly required. 	(ECF No. 75,
PageID #2888.)
But Benedettini’s provider of CFO services testified that he was aware that
rebate checks were “part of . . . the supply agreement, that there would be some type
of rebate” and that such information was included in “the incentives proposal email,”
which stated that “Sherwin shall pay an annual rebate.” 	(ECF No. 67-35, PageID
#2640.) 	Moreover, he testified that the rebates represented “everything that we
bought from Sherwin-Williams . . . [a]nd we bought more than coatings and paint
from Sherwin-Williams.” 	(Id., PageID #2654.) 	When the rebate amounts came in
from Sherwin-Williams in the first years of the supply agreement, he assumed they
were based on Benedettini’s purchases of all products from Sherwin-Williams. 	(Id.,
PageID #2670.) 	Bible testified that it was important to Benedettini to receive the
same rebate percentage provided in the supply agreement on as many purchases as
they could because it “was an awesome benefit.” 	(ECF No. 67-31, PageID #2294.)
Moreover, in August 2020, Bible asked Benedettini’s accounting manager how much
Benedettini spent with Sherwin-Williams for the first half of that year, and she
responded with the amount Benedettini spent and the amount of the rebate it had
received. (ECF No. 63-10, PageID #1116.)
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Therefore, whether Benedettini knew how the rebates were calculated has no
bearing on the course of performance under the contract. 	It is undisputed that
Benedettini knew it received rebates for its purchases from Sherwin-Williams
pursuant to Paragraph 6 of the supply agreement in amounts beyond the sales of the
products on Exhibit A. For four years, Benedettini did not object to annual rebates,
“despite numerous opportunities to voice its concern.” 	Lancaster Glass Corp. v.
Philips ECG, Inc., 835 F.2d 652, 659 (6th Cir. 1987).
In Metal Seal Precision, Ltd. v. Good Time Outdoors, Inc., 2018-Ohio-5326, 128
N.E.3d 678, ¶ 64 (Ohio Ct. App.), the appellate court determined that the trial court
properly assessed the parties’ course of performance to “explain or supplement the
. . . agreement” where the parties’ transactions took place over the course of several
months and each party acquiesced to the other’s performance. 	In St. Marys v.
Auglaize Cty. Bd. of Comm’rs, 115 Ohio St. 3d 387, 2007-Ohio-5026, ¶¶ 45–46, the
Ohio Supreme Court determined that the conduct of the county and the city “over a
period of years” demonstrated that they agreed to a certain rate, in part because “the
county never objected to the method of funding during and even beyond the expiration
of the agreement, until now.” 	Similarly, it is undisputed that Benedettini accepted
annual rebates—as provided for in the supply agreement in amounts—for four years
without objection for all products it purchased from Sherwin-Williams, not just those
listed on Exhibit A. 	(ECF No. 63, PageID #961–62.) 	This course of performance
explains how the parties understood the supply agreement in practice and leaves no
room for a reasonable jury to find otherwise.
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I.B.2.d.ii. Other Agreements
Benedettini also argues that Sherwin-Williams’s evidence regarding rebates is
unpersuasive because Sherwin-Williams provides rebates to customers that “lack a
supply agreement with Sherwin.” (ECF No. 69-1, PageID #2735.) Benedettini claims
that this is evidence that, even if it “had reverse-engineered Sherwin’s rebate
calculus, it could not have concluded that the bare presence of a rebate or discount
means that the definition of ‘Products’ expanded and UV 257 is governed by the
Supply Agreement.” 	(ECF No. 69-1, PageID #2735.) 	In making this argument,
however, Benedettini omits testimony from LaFavers that, if Sherwin-Williams gave
a rebate to customers without a supply agreement, it did so pursuant to “a rebate
agreement.” 	(ECF No. 67-14, PageID #2011.) 	Benedettini did not have a rebate
agreement—just the supply agreement.
* 	* 	*
For these reasons, the Court determines that there is no genuine dispute of
material fact that Benedettini knew or should have known that it accepted annual
rebates from Sherwin-Williams based on its purchases of all products from Sherwin-
Williams.
I.B.2.e. Exclusivity
Finally, Benedettini argues that the supply agreement was not exclusive
because “[b]oth parties acted in a manner consistent with the Supply Agreement
applying to less than all of Benedettini’s purchases of paints, coatings, and related
products” and that Sherwin-Williams was aware of this practice and did not object.
(ECF No. 69-1, PageID #2730.) 	In support, Benedettini cites Bible’s testimony that
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41
he was “[n]ot sure if [he] ever told anyone there [that Benedettini would give Sherwin-
Williams] a hundred percent” of its paints and coatings business, but he “told them
we’d move their coatings or stains and paints to them.” 	(ECF No. 67-31, PageID
#2264.) 	Further, Mr. Benedettini testified that Sherwin-Williams “would not be
obtaining exclusive business” through the supply agreement because Benedettini
“outsource[d] 	and 	[bought] 	other 	products.” 	(ECF 	No. 	67-34, 	PageID 	#2496.)
Notwithstanding 	the 	representations 	of 	Benedettini’s 	employees 	to 	Sherwin-
Williams, 	the 	parties’ 	actions 	demonstrate 	that 	Benedettini 	accepted 	without
objection for four years the benefits of the supply agreement for all of its purchases
from Sherwin-Williams, including the annual rebates and pricing.
Benedettini contends that its purchases of acetone from other suppliers
“breaks exclusivity” of the supply agreement. (ECF No. 69-1, PageID #2730.) But “a
contract to furnish only part of the buyer’s requirements . . . is sufficient to be a
requirements contract under UCC 2-306(1).” Cyril Bath Co. v. Winters Indus., a Div.
of the Whittaker Corp., 892 F.2d 465, 467 (6th Cir. 1989). 	In Cyril Bath, the Sixth
Circuit determined that the purchaser “was explicitly obligated under the agreement
to purchase its tubes from [the seller]”; therefore, the parties’ agreement was still a
requirements contract. Id. So too here. In any event, as Sherwin-Williams indicated
at oral argument and in its papers, Paragraph 14 of the supply agreement states that
“[t]he waiver of a breach of any provision of this Agreement shall not constitute a
waiver of a prior, concurrent, or subsequent breach of the same or of any other
provision hereof.” (ECF No. 29-1, ¶ 14, PageID #331; ECF No. 74, PageID #2868.) In
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other words, even if Benedettini was obligated to purchase acetone from Sherwin-
Williams, the plain language of the contract does not waive any of Benedettini’s other
obligations under the supply agreement. (ECF No. 74, PageID #2868.)
* 	* 	*
Although the parties sharply dispute the identity of the UV coating listed on
Exhibit A of the supply agreement (see, e.g., ECF No. 64-1, PageID #1140; ECF
No. 69-1, PageID #2720–21), that dispute is not material. The record leaves no room
for a reasonable jury to find that Sherwin-Williams did not pay rebates, which
Benedettini accepted without objection for four years, pursuant to Paragraph 6 of the
supply agreement. (ECF No. 63, PageID #961–62; ECF No. 29-1, ¶ 6, PageID #329–
30.) 	Those rebates covered all purchases Benedettini made from Sherwin-Williams
during those years. 	(ECF No. 62-11; ECF No. 63, PageID #961–62; ECF No. 63-3,
PageID #1072–74; ECF No. 63-7; ECF No. 63-8; ECF No. 63-9; ECF No. 63-10,
PageID #1116; ECF No. 67-31, PageID #2294; ECF No. 67-35, PageID #2640, #2654,
#2670.) Accordingly, the Court concludes that the parties’ course of performance with
respect to the rebates shows that the supply agreement governs their relationship for
the coatings at issue in this litigation. This determination obviates the need for the
Court to address the parties’ arguments about the usage of trade and estoppel.
II. 	Application of Warranty Disclaimers
Determining that the supply agreement covers UV 257 does not end the
parties’ disputes. 	Benedettini contests the applicability of the supply agreement’s
disclaimers of warranties and limitations of liability. 	It argues that, “[f]or those
disclaimers to apply, they must be conspicuous and in writing,” pursuant to Ohio
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Revised Code Section 1302.29(B). 	(ECF No. 76, PageID #2899.) 	“That is, Sherwin
must show that it conspicuously disclaimed warranties as to UV 257 in writing.” (Id.)
Paragraph 10 of the supply agreement reads:
Sherwin-Williams represents and warrants to Customer that all Products sold
by Sherwin-Williams to Customer shall be free of manufacturing defect in
accordance with the Sherwin-Williams quality control specifications in effect at
the time of manufacturing. 	EXCEPT FOR THE FOREGOING, SHERWIN-
WILLIAMS DISCLAIMS ALL WARRANTIES ARISING OUT OF THE SALE
OF PRODUCTS UNDER THIS AGREEMENT, OF ANY KIND, EXPRESS OR
IMPLIED, ORAL OR WRITTEN, INCLUDING BUT NOT LIMITED TO THE
IMPLIED 	WARRANTY 	OF 	MERCHANTABILITY 	AND 	THE 	IMPLIED
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT
SHALL SHERWIN-WILLIAMS BE LIABLE FOR SPECIAL, INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES TO CUSTOMER OR TO
ANY THIRD PARTY CLAIMING BY OR THROUGH CUSTOMER. IN NO
EVENT 	SHALL 	SHERWIN-WILLIAMS 	LIABILITY 	TO 	CUSTOMER
EXCEED 	SHERWIN-WILLIAMS’ 	AGGREGATE 	NET 	AMOUNT 	OF
PRODUCTS PAID FOR BY CUSTOMER 	DURING THE TERM OF THIS
AGREEMENT.
(ECF No. 29-1, ¶ 10, PageID #330.) 	This language, coming in a paragraph titled
“REPRESENTATIONS AND WARRANTIES,” underlined and written in all caps
and bold so that it stands out, satisfies the requirements of Ohio law. Ohio Rev. Code
§ 1302.29(B).
III. 	Failure of Essential Purpose
Benedettini argues in its papers and at oral argument that Sherwin-Williams
“would have the Supply Agreement disclaim every express and implied warranty for
UV 257 and leave Benedettini no ability to recover,” such that the supply agreement
fails of its essential purpose. (ECF No. 69-1, PageID #2738.)
Section 1302.93(B) of the Ohio Revised Code largely adopts Section 2-719 of
the Uniform Commercial Code, providing that “[w]here circumstances cause an
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44
exclusive or limited remedy to fail of its essential purpose, remedy may be had as
provided” in other sections of the code. Traxler v. PPG Indus., Inc., 158 F. Supp. 3d
607, 613–14 (N.D. Ohio 2016). “A limited or exclusive remedy can fail of its essential
purpose if it deprives the purchaser of the substantial value of its bargain, leaving
the purchaser without a remedy.” 	Lincoln Elec. Co. v. Technitrol, Inc., No. 1:08 CV
2346, 2010 WL 2219341, at *4 (N.D. Ohio June 2, 2010) (citation omitted).
The plain text of Paragraph 10 belies Benedettini’s argument. That provision
does not disclaim all warranties or remedies. Instead, it provides a limited warranty
for manufacturing defects. (ECF No. 29-1, ¶ 10, PageID #330.) Further, the parties
agreed that Sherwin-Williams would have 	no liability for special, indirect, or
consequential damages or to any customer of Benedettini. 	(Id.) 	Also, they limited
the liability of Sherwin-Williams to the “ AGGREGATE NET AMOUNT OF PRODUCTS
PAID FOR BY CUSTOMER DURING THE TERM OF THIS AGREEMENT.” (Id.)
“Contracting parties are free to determine which implied warranties shall
accompany their transaction,” and “both the implied warranties of merchantability
and of fitness may be excluded or modified.” WEL Companies, Inc. v. Haldex Brake
Prods. Corp., 467 F. Supp. 3d 545, 562–63 (S.D. Ohio 2020) (quoting Chemtrol
Adhesives, Inc. v. American Mfrs. Mut. Ins. Co., 42 Ohio St. 3d 40, 537 N.E.2d 624,
638 (1989)).
III.A. Deprivation of the Substantial Value of the Bargain
When it comes to a failure of essential purpose, the identities of the parties,
the products, and the warranty provisions at issue influence courts’ analyses as to
whether certain warranties fail of their essential purpose to “deprive[] the purchaser
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45
of the substantial value of its bargain.” 	Lincoln Elec., 2010 WL 2219341, at *4
(citation omitted). For example, several cases analyze failure of essential purpose in
the context of provisions regarding repair and replacement of products or assurances
that a product will conform to the applicable manufacturer’s specifications. See, e.g.,
Chemtrol Adhesives, 537 N.E.2d at 638 (provision regarding repair and replacement
at issue); Lincoln Elec., 2010 WL 2219341, at *1 (provision stating that transformers
would “conform to the applicable manufacturer’s specifications” and providing for
refund, repair, or replacement of such products); WEL Companies, 467 F. Supp. 3d at
562–63 (warranty limited to replacement or credit); Dippin’ Dots, LLC v. Travelers
Prop. Cas. Co. of America, 353 F. Supp. 3d 631, 639 (W.D. Ky. 2018) (acknowledging
that “the ‘failure of essential purpose’ exception best applies to situations where the
contract limits liability to repair or replacement of a product and that product is in a
condition where the defect cannot be fully corrected by the repair or replacement of
the defective part or product”); Biszantz v. Stephens Thoroughbreds, 620 F. App’x 535,
539 (6th Cir. 2015) (acknowledging that the Kentucky statute for failure of essential
purpose “has been invoked most often in cases in which the exclusive remedy involves
replacement or repair of defective parts, and the seller because of his negligence in
repair or because the goods are beyond repair, is unable to put the goods in warranted
condition”). 	But 	these 	types 	of 	repair-or-replace 	provisions 	do 	not 	apply 	to
Benedettini’s claims, and it does not bring a repair-or-replace claim or contend that
it does.
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Instead of the cases analyzing failure of essential purpose in the repair-or-
replace context, Gooch v. E.I. Du Pont de Nemours & Co., 40 F. Supp. 2d 863, 867
(W.D. Ky. 1999), provides a more useful framework. There, a large farming operation
purchased herbicide that allegedly stunted the growth of its corn. Distinguishing the
repair-or-replace line of cases because limited liability to repair or replace a product
was not at issue, the court determined, under a provision of Kentucky law identical
to Ohio’s version of the Uniform Commercial Code, that a “remedy does not ‘fail of its
essential purpose’ simply because it limits the recovery of a particular relief sought,”
but only “when it deprives a party of the substantial value of its bargain.” Id. at 870
(quoting Hill v. BASF Wyandotte Corp., 696 F.2d 287 (4th Cir. 1982)).
In this case, the supply agreement does not deprive Benedettini of “the
substantial value of its bargain.” Id. Specifically, Paragraph 10 provides an avenue
for recovery. 	Should Benedettini prove liability on the part of Sherwin-Williams,
Paragraph 10 caps any recovery at the “ AGGREGATE NET AMOUNT OF PRODUCTS
PAID FOR BY CUSTOMER DURING THE TERM OF THIS AGREEMENT .” (ECF No. 29-1,
¶ 10, PageID #330.) In other words, if Benedettini can establish liability, the supply
agreement conspicuously permits it to recover an amount up to the total of what it
paid for all paints, coatings, and related products that it purchased from Sherwin-
Williams—the value of its bargain with Sherwin-Williams.
III.B. Sophisticated Parties
Courts also distinguish failure of essential purpose cases involving breach of
warranty claims by individual consumers, see, e.g., Traxler, 158 F. Supp. 3d at 611
(consumer class action regarding products purchased from retailers), from disputes
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“between two business entities, fully capable of bargaining over items such as the
breadth and time period of the warranties on the product sold,” Venture Express, Inc.
v. Vanguard Nat’l Trailer Corp., 585 F. Supp. 3d 1060, 1075 (M.D. Tenn. 2022)
(citation 	omitted). 	Courts 	outside 	this 	Circuit 	consider 	whether 	there 	is 	a
“commercial transaction involving two sophisticated corporate entities” with “little or
no disparity in the bargaining power of the parties.” Myrtle Beach Pipeline Corp. v.
Emerson Elec. Co., 843 F. Supp. 1027, 1044 (D.S.C. 1993).
In cases where the “contract was freely entered into by two corporations well-
versed in commercial practices,” the “commercial context cannot be divorced from the
concept of limited remedies.” 	Id. 	“Section 2-719 was intended to encourage and
facilitate consensual allocations of risks associated with the sale of goods. 	This is
particularly true where commercial, rather than consumer sales are involved.” V-M
Corp. v. Bernard Distrib. Co., 447 F.2d 864, 869 (7th Cir. 1971). “[L]imiting damages
to a refund of the purchase price in a contract between ‘sophisticated business
entities, and where consequential damages in the event of a problem could be
extensive, is a reasonable business practice.’” 	Canal Elec. Co. v. Westinghouse Elc.
Corp., 756 F. Supp. 620, 626 (D. Mass. 1990) (citation omitted).
The 	record 	shows 	that 	Benedettini 	and 	Sherwin-Williams 	are 	both
sophisticated 	businesses 	without 	a 	disparity 	in 	bargaining 	power 	under 	the
circumstances of this case. 	They entered into the supply agreement after extensive
negotiations and internal deliberations. Benedettini had other suppliers available in
the market. It agreed to the conspicuous limitations of the warranties and remedies
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available to it under the supply agreement. 	(ECF No. 29-1, ¶ 10, PageID #330.)
Benedettini has “failed to plead the very premise of any failure-of-essential-purpose
argument: 	the actual failure of a remedy.” Siriano v. Goodman Mfg. Co., No. 2:14-
cv-1131, 2015 WL 12748033, at *11 (S.D. Ohio Aug. 18, 2015). 	Benedettini has
contractual remedies available to it. 	Whatever economic and market difficulties
Benedettini faces as a result of the product defect it alleges, the Court may not
interfere with “[c]ontracting parties [that] are free to determine which warranties
shall accompany their transaction.” Chemtrol Adhesives, 537 N.E.2d at 638.
* 	* 	*
For the foregoing reasons, the Court determines that the supply agreement’s
warranty provision does not cause the agreement to fail of its essential purpose.
CONCLUSION
Had the Federal Trade Commission not required the divestiture of certain
assets as part of the acquisition of Valspar, in all likelihood this lawsuit would not
have happened. 	Benedettini would have continued to purchase coatings from its
incumbent supplier, which would have then been part of Sherwin-Williams. Perhaps
quality issues or other concerns would have strained or ruptured that relationship.
But any dispute over those issues would have looked far different than this bitter
contest and the extensive record it generated, only a small fraction of which is
discussed in this ruling. 	This litigation represents an additional externality or cost
of regulation, one that regulatory scoring and cost-benefit analysis fails to capture—
to say nothing of the hundreds of consumers who complained of the issue giving rise
to this litigation that the divestiture set in motion.
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For all these reasons, the Court DENIES Benedettini’s motion for summary
judgment (ECF No. 69) and GRANTS IN PART AND DENIES IN PART Sherwin-
Williams’s motion for summary judgment (ECF No. 64). 	Specifically, the Court
determines that Sherwin-Williams is entitled to judgment as a matter of law on its
counterclaim for declaratory judgment (Count One) that Benedettini’s purchases of
UV 257 were subject to the exclusions and limitations of Paragraphs 10 and 17 of the
supply agreement.
SO ORDERED.
Dated: November 20, 2025
J. Philip Calabrese
United States District Judge
Northern District of Ohio
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