COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69318 COM-CORP INDUSTRIES, INC., : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION H&H MACHINE TOOL COMPANY : OF IOWA, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 31, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 239053 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: James T. Bartolozzi Michael H. Diamant Matthew S. Friedman KAHN, KLEINMAN, YANOWITZ & ARNSON Tower at Erieview 1301 East Ninth Street No. 2600 Cleveland, Ohio 44114-1824 For defendant-appellant: Mark B. Cohn Jeffrey A. Huth Charles P. Royer McCARTHY, LEBIT, CRYSTAL & HAIMAN 1800 Midland Building 101 Prospect Avenue, West Cleveland, Ohio 44115 -3- NAHRA, J.: This appeal is brought from a nine day trial over a contract dispute between plaintiff-appellee, Com-Corp Industries, Inc. (Com- Corp), and defendant-appellant, H&H Machine Company of Iowa (H&H), in which appellant agreed to provide appellee dies that produce "bezels." In August, 1991, Com-Corp and H&H had negotiations which culminated in an agreement that H&H would develop, design, and build two dies. These dies were to be class "A" progressive complete dies which would produce the bezels in one continuous operation. The negotiations culminated in written memoranda, the first prepared consisted of H&H's price quotation which was sent to Com-Corp. After receipt and further negotiations, Com-Corp then sent H&H a purchase order which consisted of three pages of conditions and terms regarding the purchase. The purchase order was signed by Com-Corp and signed and acknowledged with specific objections to some of the terms by H&H. Com-Corp agreed to H&H's objections. Over the course of the next five months, H&H worked on the dies. In January, 1992, H&H met with representatives of Com-Corp and its customer, Inland Fisher Guide (IFG), a subsidiary of General Motors, for whom Com-Corp was to produce the bezels. At this meeting, H&H asked for an additional amount of money over the contract price, without which it would not continue the production of the dies. Com-Corp and IFG agreed to pay the increased price. -4- By July, 1992, H&H had not supplied Com-Corp with parts for inspection produced from the dies which parts were to be delivered the previous March 9, 1992. Facing a deadline from its customer, Com-Corp retrieved the unfinished dies from H&H, retooled and redesigned the dies, and produced the bezels. Com-Corp was required to change the dies into a multiple stage production process, rather than the contracted for one stage process. By doing so, it claimed to have "incurred" additional labor and parts costs. Com-Corp brought an action against H&H for breach of contract, breach of implied warranties, and for attorneys fees and costs for the action. H&H counterclaimed for the remaining payment due on the contract. Prior to trial, the trial court determined that the purchase order was an integrated contract, and excluded H&H's quotation memorandum from evidence. During the trial, H&H was able to reference the quotation and the negotiations surrounding it, but was precluded from presenting the document to the jury. At trial, the court excluded the testimony of one of H&H's witnesses, and limited the testimony of another. Both witnesses were former employees of Com-Corp. Additionally, the Judge admitted into evidence two documents prepared by Com-corp as summaries of its claimed damages. The jury returned a verdict in favor of Com-Corp, finding by interrogatory that H&H had breached its contract to supply the dies and that as a result of the breach Com-Corp was awarded damages in the amount of $1,082,619.47, of -5- which $31,910.00 was awarded for its finding Com-Corp was subjected to economic duress. The jury additionally returned a verdict for Com-Corp for its breach of implied warranty claims without awarding additional damages. Following trial, the court held a hearing and awarded $298,562.00 in attorney fees and $27,831.59 in expenses to Com-Corp. H&H timely filed this appeal. I. In its first assignment of error, appellant states: THE TRIAL COURT ERRED IN DETERMINING THAT EXHIBIT 4, THE COM-CORP "CONFIRMING PURCHASE ORDER", WAS THE ENTIRE CONTRACT BETWEEN THE PARTIES. Appellant argues the court erred in determining that the purchase order was the entire contract because the terms of its quotation submitted to appellee prior to the purchase order preclude the creation of a new contract. Appellant also argues that under R.C. 1302.10, either the terms contained within its quotation should prevail, or alternatively that the terms of the purchase order which the court determined to be the contract cannot control, as the purchase order was merely a confirmation of an oral contract. Prior to trial, the Judge heard arguments from both appellant and appellee as to whether the contract was integrated in Com- Corp's purchase order and found that it was. The court determined that the only writing signed by both parties was the purchase order, and therefore the terms of the purchase order were the terms of the contract. -6- A court's determination of whether a writing is a complete integration is an issue of law. Trinova Corp. v. Pilkington Bros., P.L.C. (1994), 70 Ohio St.3d 271, 638 N.E.2d 572. A reviewing court is to determine whether the court below has committed error, and if error is found, to then determine if appellant has been thereby prejudiced. Id. The trial court found that the purchase order was the only writing signed by both parties, and that the purchase order limited acceptance to its terms. The court applied R.C. 1302.10, Ohio's codification of UCC 2- 207, and determined that the terms of the purchase order constituted the contract. Section 1302.10 provides: (A) A definite and seasonable expression of acceptance or a written confirmation that is sent within a reasonable time operates as an acceptance even though it states terms additional or different from those offered or agreed upon, unless acceptance is expressly made conditional on assent to the additional or different terms. Id. (Emphasis added.) The purchase order contained the following paragraph: 1. ACCEPTANCE: (a) Except as provided in (b) below, this order constitutes BUYER's order to SELLER and becomes a binding contract subject to the terms and conditions set forth herein when accepted by acknowledgment or commencement of performance by SELLER. This order can be accepted only on the exact terms and conditions herein set forth (including the modes of acceptance specified in the immediately preceding sentence) and no terms or conditions stated by SELLER in accepting this order which in any manner conflict with are inconsistent with or are in addition to those herein set forth shall become a part of or in any way alter the aforementioned contract. (b) If the face of this order references (or otherwise cites material terms of) a specific verbal or written quotation or proposal made by SELLER to BUYER, then this order constitutes BUYER's acceptance of the referenced or cited offer by SELLER to BUYER; provided, however, that to the extent that the terms and conditions contained herein are in conflict with, -7- inconsistent with or additional to the terms and conditions of SELLER's offer to BUYER, BUYER's acceptance by this order is expressly conditioned upon SELLER's assent to BUYER's version of such conflicting, inconsistent or additional terms and conditions which assent by SELLER shall be by acknowledgment or commencement of performance. (Emphasis added). In this case, Com-Corp's purchase order specifically limited acceptance to its own terms in accord with R.C. 1302.10(A). It became an offer in and of itself, to be accepted or rejected by H&H. H&H signed and accepted the purchase order, and thus the terms of the purchase order became the terms of the contract. See, e.g., American Bronze Corp. v. Streamway Products (1982), 8 Ohio App.3d 223, 456 N.E.2d 1295; General Elec. Co. v. Siempelkamp GmbH & Co. (C.A. 6, 1994), 29 F.3d 1095. Appellant argues that R.C. 1302.10(A) is inapplicable to its case because its price quotation attempted to circumvent the application of R.C. 1302.10(A) by limiting the terms contained in its quotation to any subsequent negotiation. This argument fails, as appellee did not agree to accept the quotation, and was therefore not bound by its terms. Appellant did agree to be bound by the terms of the purchase order. In fact appellant objected to certain terms of the agreement, and those objections were agreed to by appellee. The purchase order thus was a negotiated contract and the court did not err in finding that the terms contained therein constituted the entire contract between the parties. For these reasons, appellant's first assignment of error is overruled. -8- II. In its second assignment of error, appellant states: THE TRIAL COURT ERRED IN EXCLUDING THE TESTIMONY OF TWO OF DEFENDANT'S WITNESSES, AMBER THOMPSON AND DEBRA KOPACHKO. The appellant attempted to call Amber Thompson and did call Debra Kopachko, both former employees of Com-Corp, as witnesses. The court excluded Ms. Thompson from testifying and limited Ms. Kopachko's testimony relying on Evid.R. 403 to exclude the testimony. Appellant claims the court abused its discretion, arguing that the testimony of these witnesses was relevant and that the probative value of the testimony was not substantially outweighed by its prejudice. Appellee argues that the court properly excluded the testimony for other reasons. A trial court has discretion in deciding whether testimony is relevant, confusing, misleading, or prejudicial, and is in the best position to assess the effect of the testimony on the jury. Landsman v. Baker (March 26, 1992), Cuyahoga App. No. 60252, unreported (citing Columbus v. Taylor (1988), 39 Ohio St.3d 162, 164, 529 N.E.2d 1382, 1385; Calderon v. Sharkey (1982), 70 Ohio St.3d 218, 436 N.E.2d 1008). As evidentiary rulings are within the discretion of the trial court, a reviewing court will only overturn the ruling where there is a clear and prejudicial abuse of that discretion. Karat Gold Imports, Inc. v. United Parcel Service, Inc. (1989), 62 Ohio App.3d 604, 577 N.E.2d 115 (citing O'Brien v. Angley (1980), 63 Ohio St.2d 159,163, 407 N.E.2d 490, 493.) An abuse of discretion is one that is "unreasonable, arbitrary or -9- unconscionable," and one in which a reviewing court cannot find a "sound reasoning process that would support that decision." AAAA Enterprises, Inc. v. River Place Comm. Urban Redevelopment Corp. (1990), 50 Ohio St.3d 157, 161, 553 N.E.2d 597, 601, (citing Huffman v. Hair Surgeon (1985), 19 Ohio St.3d 83, 87, 482 N.E.2d 1248, 1252, to define abuse of discretion.) The court excluded the testimony appellant complains of by applying Evid.R. 403, which provides: (A) Exclusion Mandatory. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. (B) Exclusion Discretionary. Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence. In this case, appellant attempted to offer testimony from both Ms. Thompson and Ms. Kopachko that Com-Corp was aware of problems in the math data supplied to H&H to assist in the production of the dies. The court could reasonably exclude this testimony as irrelevant because the contract did not provide for Com-Corp to supply any math data or upon the grounds that this was cumulative as the issue of math data was raised by appellant in the testimony of five other witnesses. Thompson and Kopachko were also excluded from testifying that H&H recommended the die be produced with a secondary operation prior to agreeing to build a complete progressive die. Again, the court could reasonably exclude this evidence as either irrelevant or cumulative. -10- Appellant further sought to have Thompson and Kopachko testify that Com-Corp did not receive future business from IFG for reasons in addition to the problems with the Chevy "B" bezel project, e.g. having a bad reputation in the business. The court could reasonably exclude this testimony as hearsay, since it was offered to show the reason additional business was lost, and not merely as evidence of reputation. Moreover, no prejudice has been demonstrated since the damages awarded equalled only those claimed on the contract. Appellant sought to have both Thompson and Kopachko testify as to prior acts of John Strazzanti, President of Com-Corp; that he sent false progress reports to IFG, that he lied to IFG regarding his visits to H&H, and that he issued a false quotation to IFG, all acts that would reflect on his credibility. The court could have reasonably found that the prior bad acts appellant attempted to introduce were in contravention of Evid.R. 608(B), which provides in part: Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's character for truthfulness, ... may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness .... Thus, such evidence could only be brought out on the cross- examination of Strazzanti, not by extrinsic evidence. Appellant further sought to have both Thompson and Kopachko testify as to Strazzanti's reputation for truthfulness. The issue of credibility is a collateral issue, and the court has discretion -11- to exclude testimony upon collateral issues. See Cannell v. Rhodes (1986), 31 Ohio App.3d 183, 509 N.E.2d 963; Schwartz v. Wells (1982), 5 Ohio App.3d 13, 449 N.E.2d 9. In this case, Thompson's testimony, which was excluded in its entirety, would only be upon Strazzanti's reputation for untruthfulness, and the court did not abuse its discretion in excluding it. Kopachko's testimony on Strazzanti's credibility could likewise be reasonably excluded by the court, and appellant has not demonstrated an abuse of discretion. Appellant also attempted to have Thompson testify as to Strazzanti's intent to inflate Com-Corp's claims and that they were in fact inflated. The court conducted a voir dire of Thompson and determined that she did not have personal knowledge of this testimony and properly excluded it. Additionally, appellant cannot demonstrate prejudice, as it had ample opportunity to cross-examine four other witnesses who testified as to the type and amount of damages claimed by Com-Corp. The court additionally excluded testimony as to when Strazzanti knew that the delivery date would be in the summer of 1992. Appellant proffered the answer to this question as being in January, 1992. The court could reasonably exclude this evidence as being cumulative, as there was extensive testimony and evidence regarding the delivery date and Com-Corp's awareness thereof. Kopachko was also prevented from testifying that Strazzanti had praised H&H's efforts on the job. This evidence was already before the jury and could also reasonably be excluded as cumulative. -12- Additionally, Kopachko was excluded from testifying as to certain requirements in the specifications of the bezels. Appellant did not proffer Kopachko's answer, therefore this court cannot review the alleged error. III. In its sixth assignment of error, appellant states: THE TRIAL COURT ERRED IN ADMITTING PLAINTIFF'S EXHIBITS 53 AND 54, ITS SUMMARY OF DAMAGES. Appellant alleges that the admission of summaries of appellant's damages violates Evid.R. 1006 and 803(6), as some of the exhibits relied upon did not meet the definition of business records under the rules of evidence. (Exhibit 54 was withdrawn by Plaintiff, but the information contained within Exhibit 54 was also contained within Exhibit 53.) Evid.R. 1006 states: The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The Originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court. In order for a summary to be admissible, the writings on which it is based must be admitted into evidence or their absence explained. McHale v. Toplovich (January 30, 1992), Cuyahoga App. No. 59729, unreported (citations omitted.) The summary is to be used where the documents are unmanageable or when the summary would be useful to the jury. Id. Here, appellant alleges error because -13- portions of the summaries were created from records which would be inadmissable as evidence. Specifically, appellant argues that the use of internal labor reporting forms by Com-Corp in compiling hours spent performing tasks it claims were required by the failure of H&H to produce a progressive complete die were hearsay. A business record is admissible as an exception to the hearsay rule. Evid.R. 803(6). The rationale of the business record exception is a recognition that information compiled and contained in regularly kept records does not contain the indicia of untrustworthiness that forms one of the bases for excluding hearsay testimony. Evid.R. 803, Staff Notes. Additionally, R.C. 2317.40 provides: A record of an act, condition, or event, in so far as relevant, is competent evidence if the custodian or the person who made such record or under whose supervision such record was made testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method, and time of preparation were such as to justify its admission. In this case, Com-Corp accountant Bill Kavran testified under both direct and cross-examination that employees working on the bezel project were instructed to log their hours and submit them to Com-Corp with their time sheets. Kavran further testified that the records were then checked against the time sheets and he compiled the summaries of the dollars spent. On cross-examination, Kavran further testified that the records were kept to track the additional costs expended on the bezel project. Kavran stated that although these forms were specifically prepared for tracking the -14- costs of the bezel project, Com-Corp tracked other project costs in various ways. Although the forms used to compile the time spent on the bezel project were specifically created to track the costs, appellant has not clearly proven that the records were not kept in the regular course of business. The record indicates that Com-Corp employed various means in assessing and tracking its costs for its projects. Simply because the forms at issue were tailored to one specific project does not indicate that the records were inherently untrustworthy, and the court did not abuse its discretion in admitting these summaries. For these reasons, appellant's sixth assignment of error is overruled. IV. Appellant alleges error in the court's instructions in its third, fourth, fifth, and seventh assignments of error. In its fourth assignment of error, appellant states: THE TRIAL COURT ERRED IN INSTRUCTING THE JURY IN A MANNER WHICH WAS INCOMPLETE, SLANTED, AND UTTERLY INSUFFICIENT ON SEVERAL KEY ISSUES INVOLVED IN THE CASE. Appellant complains that the court reiterated appellee's claim five times in its instructions to the jury. In addition to its specific assignments of error, appellant argues that the court's instruction on prevention of performance was incorrect, confusing, and misleading. The court stated in its instructions that the contract between the parties consisted of an agreement for appellant to produce the -15- dies in question according to the terms set forth in the purchase order. The duty of the trial court in instructing the jury is "to state clearly and concisely the principles of law necessary to enable the jury to accomplish the purpose desired." Cleveland Elec. Illum. Co. v. Astorhurst Land Co. (1985), 18 Ohio St.3d 268, 272, 480 N.E.2d 794, 798; Eaton Corp. v. Taylor-Winfield Corp. (July 15, 1993), Cuyahoga App. No. 62361, unreported. Here, the trial court correctly ruled that the terms of the purchase order not objected to by appellant comprised the terms of the agreement of the parties. In stating this to the jury, the court correctly applied the law to the case. Appellant next argues that the court's instruction on prevention of performance as excusing its breach was incorrect, confusing and misleading. The court instructed the jury that: The defendant claims that the plaintiff prevented it from performing its promise to deliver working dies. The defendant, therefore, must prove to you by the greater weight of the evidence that the plaintiff prevented performance of the defendant's promise and that the defendant would have performed except for the prevention by the plaintiff. In that event, plaintiff -- in the event that you so find by a preponderance of the evidence, then plaintiff (sic) would be relieved of its obligations to the plaintiff and no longer be bound by them except as amended in the contract. Appellant complains that the charge implies that, despite the prevention of performance by Com-Corp., H & H would still be liable to perform under the contract due to the court's last words "except as amended in the contract". The instruction follows 2 Ohio Jury Instructions (1995), Section 253.15, except for the last phrase inserted by the court. -16- Appellant states that prevention of performance is an absolute bar to recovery as a matter of law. However, exceptions do exist, such as where the plaintiff is justified in preventing performance. See, e.g., Werner v. Biederman (1940), 64 Ohio App. 423, 28 N.E.2d 957. The instruction "except as amended in the contract" does not create a bar to H&H's defense as claimed. The instruction reminds the jury that H&H claimed the contract was modified, and that in resolving the issue of prevention of performance it should consider any modifiations to the contract. There is no error in the court's instruction. As the trial court did not err in determining the terms of the contract, nor in instructing the jury on the issue of prevention of performance, appellant's fourth assignment of error is overruled. In its fifth assignment of error, appellant states: THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Appellant argues that it was improper for the instructions to be given. As the warranties were included in the contract for the reasons set forth supra, the court did not err by giving the instructions on the warranties of merchantability and fitness for a particular purpose. Appellant next argues that the court's instructions on the warranty of merchantability and warranty of fitness for a particular purpose were inadequate and incomplete. A trial court is required to instruct the jury in a clear and understandable manner that does not confuse or bias the jury. Cleveland Elec. -17- Illum. Co. v. Astorhurst Land Co., supra; Eaton Corp. v. Taylor- Winfield Corp., supra. The warranty of merchantability is set forth in R.C. 1302.27 as: (B) Goods to be merchantable must be at least such as: (1) pass without objection in the trade under the contract description; and ... (3) are fit for the ordinary purposes for which such goods are to be used; ... The warranty of fitness for a particular purpose is set forth in R.C. 1302.28 as: Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded of modified under section 1302.29 of the Revised Code and implied warranty that the goods shall be fit for such purpose. The court instructed the jury on these warranties: The plaintiff Com-Corp claims a breach of a written contract to design, develop and build two class "A" progressive complete dies that were capable of producing end taillight bezels for the 1993 Chevrolet Caprice automobile which conformed to Com-Corp's tooling manual and which met the contract specifications and which met the express warranties of merchantability and fitness for a particular purpose. *** Now, the purchase order between the parties provides that the dies must be merchantable and fit for the ordinary purposes for which the dies were intended to be used. To be merchantable, the dies must pass without objection in the trade under the contract description and they must be of fair average quality within the description. *** -18- In this case, Com-Corp claims that H&H breached the contract which required H&H to develop, design and build the two dies ... and which met with the contract specifications, by failing to build the dies that they were merchantable, that is, that they would pass without objection in the trade and were of fair or -- fair average quality, that they were fit for the ordinary purposes for which such dies are used and by failing to build the dies in a workmanlike, which is work that is customarily done in the community for this type of die. The court correctly instructed the jury as to the warranty of merchantability. The court, however, did not include a necessary element of the warranty of fitness for a particular purpose. It omitted the requirement that in order for the warranty to be applicable the buyer must rely upon the "seller's skill or judgment". R.C. 1302.28. However, appellant has not demonstrated clear prejudice in the failure of the court to give this instruction. In this case, the jury returned interrogatories finding appellant to be in breach of the contract, and awarded damages. The jury then found that appellant breached both the warranties of merchantability and fitness for a particular purpose, but did not award any additional damages. Here, the jury could have awarded damages on its finding that appellant breached the contract, breached the warranty of merchantability, or breached the warranty of fitness for a particular purpose. An error in the instruction to a jury will be disregarded where the verdict of the jury is supported by a proper charge independent of the charge given in error. McCarthy v. Kasperak, (1981), 3 Ohio App.3d 206, 208, 444 N.E.2d 472, 475 (citing Sites -19- v. Haverstick (1873), 23 Ohio St. 626). As the jury was properly charged on both the issues of breach of contract and breach of warranty of merchantability, and the verdict can properly rest on either of these issues, the failure of the court to instruct the jury on the elements of the warranty of fitness for a particular purpose will be ignored. For these reasons, appellant's fifth assignment of error is overruled. In its seventh assignment of error, appellant states: THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON LOST PROFITS. Appellant claims that the court's instruction on lost profits was vague and incomplete. Even if a court's instruction was improper, appellant must demonstrate clear prejudice in order for a reviewing court to reverse a decision. Cleveland Elec. Illum. Co., supra. In this case, the sum of damages awarded for breach of contract matched the sum of damages claimed by Com-Corp in its exhibit 53, which was properly before the jury as discussed, supra, exhibit 54 having been withdrawn. In its summaries, Com-Corp did not claim damages for the loss of profits beyond the contract. Appellant complains that the court's instruction should have explained the difference between profits due under the contract and loss of future profits as claimed by Com-Corp as it failed to have its contract to produce the bezels renewed by IFG. Appellant has not demonstrated that the damages awarded by the jury to appellee consisted of the future lost profits that -20- appellant claims were not properly addressed by the court in its instructions. For this reason, if there was error committed in the instruction on lost profits, it is harmless. Appellant's seventh assignment of error is overruled. In its third assignment of error, appellant states: THE TRIAL COURT ERRED IN REFUSING TO GIVE A PROPER JURY INSTRUCTION ON MODIFICATION OF THE CONTRACT. Appellant complains that the instruction on the issue of modification of the contract was in error because it failed to provide the jury with the proper criteria on the modification of a contract by rejecting its proposed jury instruction. In order to modify a contract for the sale of goods, no further consideration is necessary to bind the parties. R.C. 1302.12. The court instructed the jury that: The defendant claims that the original contract with Com-Corp Industries was changed by -- later on during the process by mutual agreement between H&H and Com-Corp, that is, between the parties to that contract, as follows: The defendant claims that due to the failure which it claims of Com-Corp to give H&H accurate math data and the uncertainty of producing a progressive complete die that the parties later agreed to a price increase and that H&H would be required to use its best effort to produce the die as soon as possible. Parties agreeing to use its (sic) best effort does not excuse that party from performing its obligations under the contract, however, so long as it is given reasonable opportunity to do so. The defendant must prove to you by the greater weight of the evidence that the parties agreed to that change and it is the law that no additional consideration was necessary to modify a contract for sale, so long as the parties agreed. *** -21- And there's one other thing with regard to the claims of H&H, that the contract that they had with Com- Corp was modified by a later agreement between the parties. Com-Corp denies that claim. So you will decide whether such a subsequent agreement was, in fact, made. If you find that the -- Com-Corp did agree to the modification or that a person in a position of H&H would have reasonably believed that the--Com-Corp had agreed to its proposed modification, then you would find that such an agreement was, in fact, made. In making that decision, you should consider the language used and all the facts and circumstances in the evidence. Com-Corp claimed it was subjected to economic duress and was forced to acquiesce to H&H's proposed contract modifications. The court instructed the jury on the issue of economic duress as: Now, the State of Ohio recognizes the doctrine of economic duress. This doctrine holds that a party to an agreement may avoid the obligation of that agreement if that party can show that it was subjected to a wrongful act or threat and that it was deprived of its own free will in the agreement. To avoid a contract on the basis of duress, the party must prove coercion by the other party to the contract. Economic duress may be shown where the person claiming duress was subjected to improper threats which deprived that person of any reasonable alternative but to assent to the terms of the person making the threat. The person claiming duress must show that the person making the threats caused or contributed to the alleged economic duress. It is not enough to show that one assented merely because of difficult circumstances that are not the fault of the other party. Appellant requested a charge based on Roth Steel Products v. Sharon Steel Corp. (C.A. 6, 1983), 705 F.2d 134, which included the standards of good faith and fair dealing. Where the court is asked to review specific errors in instructions, the court is to review the instructions in their entirety. Schade v. Carnegie Body Co. (1982), 70 Ohio St.2d 207,210-11, 463 N.E.2d 1001, 1004. The -22- complete instructions on the issues of modification and economic duress encompass the standards appellant complains were lacking. Moreover, the court properly instructed the jury on economic duress. It found for Com-Corp on this issue. This finding precludes any finding of reasonableness or good faith on the part of H&H in seeking the modification. Thus, appellant can show no prejudice in the court's refusal to give its requested instruction. Accordingly, appellant's third assignment of error is overruled. V. In its eighth assignment of error, appellant states: THE TRIAL COURT ERRED IN AWARDING PLAINTIFF'S ITS ATTORNEY FEES AND EXPENSES. Appellant argues that it is impermissible to allow parties to contract for an award of attorney's fees in a commercial context. Alternatively, appellant claims it was error for the court, not the jury, to decide the amount of the fees. The purchase order provided in Section 14: In the event Seller defaults and Buyer brings suit for any cause arising out of this purchase order, Buyer shall be entitled to have and recover from Seller Buyer's costs in such suit and such reasonable attorney's fees as shall be fixed by the court. In Ohio, attorney fees, pursuant to the "American" rule, are not recoverable absent a statutory authorization, a showing of bad faith, or an enforceable contract provision. Nottingdale Homeowners Association, Inc. v. Darby (1987), 33 Ohio St.3d 32, 33- 34, 514 N.E.2d 702, 704-05; O'Neill v Showa Denko K.K. (1995), 101 -23- Ohio App.3d 345, 348, 655 N.E.2d 767, 768-69 (citing Krasny-Kaplan Corp. v. Flo-Tork, Inc. (1993), 66 Ohio St.3d 75, 78, 609 N.E.2d 152, 154). The Ohio Supreme Court has recognized that Ohio has long followed the "American" rule regarding attorney's fees, but has recognized the contract exception to it. Worth v. Aetna, Cas. & Sur. Co. (1987), 32 Ohio St.3d 238, 513 N.E.2d 253; Nottingdale, supra. Appellant argues that the holding in Nottingdale is strictly limited to a non-commercial contractual setting. In Nottingdale, the court allowed a condominium association to recover its attorney fees and costs from collecting dues owed from delinquent members, stating that the parties in a "non-commercial" transaction are entitled to contract for fee shifting. Nottingdale, 33 Ohio St. at 33, 514 N.E.2d at 704. However, the Supreme Court found that "persons have a fundamental right to contract freely with the expectation that the terms of the contract will be enforced." 33 Ohio St.3d at 36, 514 N.E.2d at 705-06. Accordingly, the Supreme Court stated that it will "not interfere with the right of the people of this state to contract freely and without needless limitation. A rule of law which prevents parties from agreeing to pay the other's attorney fees, absent a stature or prior declaration of this court to the contrary, is outmoded, unjustified and paternalistic." Id. In Worth, supra, the court found that the contract at issue was formed by "free and understanding negotiation". 32 Ohio St.3d at 243, 513 N.E.2d at 528. -24- Following Nottingdale, this court, as well as other Courts of Appeals, have not limited the contractual rights to provide for payment of attorney fees to persons in non-commercial settings. See, e.g., Gaul v. Olympia Fitness Center, Inc. (1993), 88 Ohio App.3d 310, 623 N.E.2d 1281; Hilb, Rogal & Hamilton Agency of Dayton, Inc. v. Reynolds (1992), 81 Ohio App.3d 330, 610 N.E.2d 1102. For these reasons, the provision regarding costs and attorney fees in the purchase order is enforceable as the contract was a product of free and understanding negotiations between two equally sophisticated parties. Appellant argues that even if the contract provision was enforceable, then the jury, not the court, should decide the issue of recovery of fees. Appellant further argues that the provision was ambiguous, requiring the jury to determine the meaning of "costs" and "reasonable attorney's fees." However, the provision is clear that the fees and costs are to be determined "by the court." In this case, the court held a hearing to determine the amount to be awarded under the contract as required by the agreement. See, e.g., Goldfarb v. The Robb Report, Inc. (1995), 101 Ohio App.3d 134, 655 N.E.2d 211 (court to determine amount of fees and costs to be awarded under contractual provision). The court did not err. For these reasons, appellant's eighth assignment of error is overruled. -25- Judgment affirmed. -26- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, C.J., and HARPER, J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .