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Protek11/7/2005
't it certify that your processes are going to strive to produce defective free product?
{ } "A: Yes, that does; makes no claim toward actual defective free product.
{ } "Q: Okay. What about after you have been placed on containment, what happens to your responsibility at Lake Erie once you have been placed on containment by Protek according to QS?
{ } "A: We had an agreed upon containment plan between Protek and Lake Erie Products.
{ } "Q: A containment plan required 100 percent defective free product, didn't it?
{ } "A: It - - our containment plan was that we would 100 percent sort the product.
{ } "Q: Okay. What was the reason for sorting the product, Mr. Rhodes?
{ } "A: Because there were defects found, Protek found defects.
{ } "Q: And after you were placed on containment and required to sort your product 100 percent before it was shipped, doesn't that mean that whenever somebody saw a defective bolt they had to pull it out and put it away because it wasn't going to be included in any shipment to Protek; isn't that what it means?
{ } "A: That's what that would mean.
{ } "Q: Okay. So after Lake Erie did that, went through that 100 percent sorting process and separated all the bad bolts from the good bolts, it then certified on each shipment to Protek that all of the bolts that were being shipped were defective free. Isn't that true?
{ } " *
{ } "A: Basically that's a certification that we have went through our agreed upon containment action which was 100 percent sorted.
{ } "Q: So you are saying it was not a certification that the bolts you were shipping to Protek after going through the hundred percent containment process were defective free?
{ } "A: Even doing a manual sort, you can not guarantee, you can not guarantee defective free product going through a manual sorting process."
{ } Tr. at 503-506.
{ } Upon reviews Protek's argument attempts to insert into the contract a term for which it neither negotiated, nor paid. Evidence produced at trial indicates an agreement expressly requiring defect free parts would have increased the cost by an additional $15 to $25 per thousand bolts produced.
{ } We find the trial court could properly conclude based upon the evidence the 100% visual inspection of each bolt shipment, accomplished at the customer's request and performed in accordance with the supplier's quality procedures manual, does not guarantee 100% defect free parts. Rather, the QS 9000 certification indicated such procedures were in place. Accordingly, Protek's second assignment of error is overruled.
III.
{ } In the third assignment of error, Protek maintains the trial court erred in awarding LES contract damages on its counterclaim after the trial court concluded LES breached the contract.
{ } Protek asserts the delivery terms of the contract were critical, and the evidence at trial established LES consistently delivered late quantities.
{ } The trial court's December 14, 2004 Judgment Entry finds:
{ } "50. The court finds that some of the delivery due dates required by Protek were unreasonable. For instance, the March 29, 2002, delivery date contained in the initial purchase order, dated January 4, 2002, for five (5) types of bolts was unreasonable because Protek had not even approved the drawings for the tooling for the bolts at the time the order was placed and did not do so until February 14, 2002. LES's purchase order required a 12-14 week lead time on initial orders. Inasmuch as the drawin
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