[Cite as Fedex Corp. Servs., Inc. v. Brandes Internatl. Co., 2020-Ohio-3449.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

FEDEX CORPORATE SERVICES, INC., : 

 Plaintiff-Appellee, : 

 No. 108309 

 v. : 

 

BRANDES INTERNATIONAL CO., : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED IN PART; REVERSED IN PART

RELEASED AND JOURNALIZED: June 25, 2020 

 

Civil Appeal from the Cleveland Municipal Court 

Case No. 2017 CVF 017903 

 

Appearances: 

Thomas and Thomas, Attorneys at Law, and Mark J. 

Sheriff, for appellee. 

Burkes Law, L.L.C., and John F. Burke, III, for appellant. 

EILEEN T. GALLAGHER, A.J.: 

{¶ 1} Defendant-appellant, Brandes International, Co. (“Brandes”), 

appeals the decision of the Cleveland Municipal Court granting summary judgment 

in favor of plaintiff-appellee, FedEx Corporate Services, Inc. (“FedEx”), and denying 
its cross-motion for summary judgment. Brandes raises the following assignments 

of error for review: 

1. The trial court erred when it granted FedEx’s motion for summary 

judgment. 

2. The trial court erred when it denied Brandes’ motion for summary 

judgment. 

3. The trial court erred when it denied Brandes’ motion to strike the 

affidavit of Joseph Singler. 

{¶ 2} After careful review of the record and relevant case law, we affirm in 

part and reverse in part. There remain genuine issues of material fact regarding 

FedEx’s breach of contract claim. However, the trial court did not commit reversible 

error by denying Brandes’ motion for summary judgment and motion to strike 

evidence. 

I. Procedural and Factual History 

{¶ 3} On December 6, 2017, FedEx filed a complaint against Brandes, 

setting forth causes of action for breach of contract (Count 1), failure to pay amounts 

due (Count 2), and unjust enrichment (Count 3). FedEx alleged that Brandes 

breached the terms of the parties’ delivery services agreement, and owed an 

outstanding sum of $10,303.13 for delivery services provided in April 2015. 

{¶ 4} Brandes filed a responsive brief on January 29, 2018. Brandes denied 

the material allegations of the complaint and asserted counterclaims for violations 

of R.C. 2323.51 and Civ.R. 11 (Count 1), and fraud (Count 2). Brandes alleged that 

FedEx “made false representations to defendant regarding its delivery services” and 
filed the instant complaint “merely to harass or maliciously injure defendant.” 

Following discovery, the parties filed competing motions for summary judgment. 

{¶ 5} In its motion for summary judgment, FedEx sought judgment against 

Brandes in the amount of $10,303.13, plus costs and interest. Additionally, FedEx 

sought judgment as a matter of law on Brandes’ counterclaims. 

{¶ 6} With respect to the allegations set forth in its complaint, FedEx 

asserted that “it is the holder and owner of the outstanding debt for fees owed [by 

Brandes] for shipping services provided by Federal Express Corporation and FedEx 

Ground Package System, Inc.” According to FedEx, Brandes is in the business of 

shipping “parts and equipment to * * * manufacturers throughout the world.” FedEx 

alleged that in April 2015, it delivered two separate shipments on behalf of Brandes 

to a recipient located in Los Teques, Venezuela. In the process of completing the 

shipments, the Venezuelan customs department inspected the packages and issued 

duties, taxes, and other fees. FedEx paid the charges on behalf of Brandes, and 

issued Brandes separate invoices for reimbursement, totaling $10,303.13. 

According to FedEx, however, Brandes breached the terms and conditions of the 

international shipment agreement by refusing “to reimburse FedEx for the duties, 

taxes, and other customs charges required to ship defendant’s packages to 

Venezuela.” Alternatively, FedEx argued that Brandes was unjustly enriched by 

FedEx’s payment of the customs fees, duties, and taxes. 

{¶ 7} Regarding Brandes’ counterclaims, FedEx asserted that the state-law 

claims for frivolous conduct and fraud were meritless because (1) “[FedEx]’s 
complaint is wholly grounded in fact and law,” and (2) Brandes “can produce no 

evidence that FedEx made a false or misleading representation at any time during 

the business transaction.” 

{¶ 8} In contrast, Brandes argued that FedEx’s complaint amounted to a 

fraudulent attempt “to collect on an un-owed debt.” Brandes alleged that payment 

of disputed fees (1) was “the responsibility of the receiving party,” and (2) was, in 

fact, paid by the receiving party. Brandes further alleged that the documents 

attached in support of FedEx’s motion for summary judgment demonstrate that 

FedEx made a mathematical error when applying the relevant conversion rate. 

Thus, Brandes submitted that there is no evidence of an alleged breach of contract 

or related damages. 

{¶ 9} On December 3, 2018, Brandes filed a motion to strike the evidence 

attached to FedEx’s motion for summary judgment. Brandes argued that the 

attached documents were not authenticated by a properly framed affidavit. On 

December 12, 2018, FedEx filed a brief in opposition to Brandes’ motion to strike. 

In an effort to comply with the requirements of Civ.R. 56, the opposition brief 

included a supplement to the original affidavit that was submitted with FedEx’s 

motion for summary judgment. 

{¶ 10} On February 14, 2019, the trial court issued a judgment entry, 

granting FedEx summary judgment in part. The court further denied Brandes’ 

motion for summary judgment and its motion to strike. In rendering its judgment, 

the trial court stated, in relevant part: 
This court hereby grants plaintiff’s motion for summary judgment in 

part with regard to the contract claim and finds that no genuine issue 

of genuine fact exists as to the existence of the contract nor with regard 

to the defendant’s liability for the contract and therefore finds 

judgment for the plaintiff in the amount of $10,303.13 plus interest at 

the statutory rate at 5 [percent] from December 6, 2017. 

This court denies plaintiff’s motion for summary judgment in part with 

regard to the other two counts. Furthermore, defendant’s motion of 

summary judgment and motion to strike are also denied. 

{¶ 11} Brandes now appeals from the trial court’s judgment.1

II. Law and Analysis 

A. Motion for Summary Judgment 

{¶ 12} In its first assignment of error, Brandes argues the trial court erred 

when it granted FedEx’s motion for summary judgment. In its second assignment 

of error, Brandes argues the trial court erred when it denied its motion for summary 

judgment. Collectively, Brandes contends that “the undisputed facts showed that 

 1 When a court issues a judgment that disposes of some claims but leaves other 

claims pending, the order is final and appealable only if the judgment complies with Civ.R. 

54(B). In this case, the trial court’s decision granting FedEx’s motion for summary 

judgment did not dispose of FedEx’s second and third counts, nor did it contain Civ.R. 

54(B) language. However, [e]ven though all the claims or parties are not expressly 

adjudicated by the trial court, if the effect of the judgment as to some of the claims is to 

render moot the remaining claims or parties, then compliance with Civ.R. 54(B) is not 

required to make the judgment final and appealable.” Gen. Acc. Ins. Co. v. Ins. Co. of N. 

Am., 44 Ohio St.3d 17, 21, 540 N.E.2d 266 (1989); see also Wise v. Gursky, 66 Ohio St.2d 

241, 243, 421 N.E.2d 150 (1981) (“ A judgment in an action which determines a claim in 

that action and has the effect of rendering moot all other claims in the action as to all other 

parties to the action is a final appealable order pursuant to R.C. 2505.02 and Civ.R. 54(B) 

is not applicable to such a judgment.”). Here, the relief granted to FedEx on its breach of 

contract claim rendered the unjust enrichment and “failure to pay amounts due” claims 

moot. See Wells Fargo Fin. Leasing Inc. v. Gilliland, 4th Dist. Scioto Nos. 05CA2993 and 

05CA3006, 2006-Ohio-2756, ¶ 25 (holding that when a party is liable under an express 

contract, claims for unjust enrichment are rendered moot). Because the remaining claims 

were rendered moot, the trial court’s order granting FedEx summary judgment disposed of 

all claims contained in its complaint. Thus, compliance with Civ.R. 54(B) was not required. 
Brandes did not breach any contractual obligations with FedEx.” We address these 

assigned errors together. 

1. Standard of Review 

{¶ 13} We review an appeal from summary judgment under a de novo 

standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 

241 (1996); Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 

706 N.E.2d 860 (8th Dist.1998). 

{¶ 14} Pursuant to Civ.R. 56, summary judgment is appropriate when (1) 

there is no genuine issue of material fact, (2) the moving party is entitled to 

judgment as a matter of law, and (3) reasonable minds can come to but one 

conclusion and that conclusion is adverse to the nonmoving party, said party being 

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

Harwick Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196 (1995), paragraph three 

of the syllabus. The party moving for summary judgment bears the burden of 

showing that there is no genuine issue of material fact and that it is entitled to 

judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 

N.E.2d 264 (1996). 

{¶ 15} Once the moving party satisfies its burden, the nonmoving party “may 

not rest upon the mere allegations or denials of the party’s pleadings, but the party’s 

response, by affidavit or as otherwise provided in this rule, must set forth specific 

facts showing that there is a genuine issue for trial.” Civ.R. 56(E); Mootispaw v. 

Eckstein, 76 Ohio St.3d 383, 385, 667 N.E.2d 1197 (1996). Doubts must be resolved 
in favor of the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-

359, 604 N.E.2d 138 (1992). 

2. Breach-of-Contract 

{¶ 16} To prevail on a breach-of-contract claim, “the plaintiff has the burden 

of proving four elements: (1) the existence of a contract; (2) performance by the 

plaintiff; (3) breach by the defendant; and (4) damage or loss to the plaintiff.” 

DPLJR, Ltd. v. Hanna, 8th Dist. Cuyahoga No. 90883, 2008-Ohio-5872, ¶ 16, citing 

Jarupan v. Hanna, 173 Ohio App.3d 284, 2007-Ohio-5081, 878 N.E.2d 66 (10th 

Dist.). “A meeting of the minds as to the essential terms of the contract is a 

requirement to enforcing the contract.” Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-

Ohio-2985, 770 N.E.2d 58, ¶ 16, citing Episcopal Retirement Homes, Inc. v. Ohio 

Dept. of Indus. Relations, 61 Ohio St.3d 366, 369, 575 N.E.2d 134 (1991). “If the 

minds of the parties have not met, no contract is formed.” McCarthy, Lebit, Crystal 

& Haiman Co., L.P.A. v. First Union Mgt., Inc., 87 Ohio App.3d 613, 620, 622 

N.E.2d 1093 (8th Dist.1993), citing Noroski v. Fallet, 2 Ohio St.3d 77, 79, 442 N.E.2d 

1302 (1982). 

{¶ 17} As stated, FedEx’s complaint alleged that Brandes breached the terms 

of their shipping agreement by failing to reimburse FedEx for the payment of duties 

and taxes on international shipments that were made on Brandes’ behalf in the 

amount of $10,303.13. 

{¶ 18} In support of its breach of contract claim, FedEx attached the 

following documents to its motion for summary judgment: (1) the statement of 
account with Brandes (Plaintiff’s exhibit A); (2) an April 17, 2015 invoice for duties, 

taxes, customs, and other fees in the amount of $5,121.90 (Plaintiff’s exhibit B); (3) 

an April 30, 2015 invoice for duties, taxes, customs, and other fees in the amount of 

$5,181.23 (Plaintiff’s exhibit C); (4) an email correspondence relating to Brandes’ 

dispute of the fees levied on the shipments (Plaintiff’s exhibit D); (5) a copy of a letter 

sent to Brandes indicating that FedEx received confirmation from the Venezuelan 

government that the “assessment and calculation of custom fees are correct” 

(Plaintiff’s exhibit E); (6) a copy of the “FedEx Express Terms and Conditions” for 

international shipments (Plaintiff’s exhibit F); and (7) copies of the air waybill for 

each shipment to Venezuela (Plaintiff’s exhibit G). Finally, FedEx relied extensively 

on the supplemental affidavit of FedEx manager, Joseph Singler (Plaintiff’s exhibit 

H). 

{¶ 19} Relevant to this appeal, Singler made the following averments: 

2. I am completely familiar with Plaintiff’s books and records as they 

pertain to the Defendant herein since the Defendant’s account was 

handled directly by my Branch. 

3. That Defendant is indebted to the Plaintiff in the sum of $10,303.13 

plus interest at the statutory rate per year from September 26, 2017[,] 

for both services rendered and money paid on behalf of the Defendant 

for Customs and Duty charges. 

4. Defendant contracted with the Plaintiff for the provision of delivery 

services by FedEx Corporate Services, Inc. as well as its affiliated 

entities Federal Express Corporation and FedEx Ground Package 

System, Inc. 

5. Defendant agreed to the Plaintiff’s Terms and Conditions when they 

contracted with Plaintiff, including the provisions for “Duties and 

Taxes” attached hereto. 
6. No payment was ever received from either the Defendant or the 

Defendant’s customer for the delivery charges and the Duties and Taxes 

paid by the Plaintiff with respect to the two (2) separate invoices listed 

on Exhibit A attached to the Plaintiff’s complaint. 

* * * 

8. That in order to require payment from the recipient the shipper 

needs to first get a Letter of Authorization (LOA) from the recipient. In 

this case, the Defendant failed to obtain a LOA from the recipient with 

respect to either invoice currently due and owing. Even if the shipper 

obtains a LOA, the shipper remains liable to the Plaintiff, pursuant to 

the published Tariffs and Terms of Conditions in the event the recipient 

fails to pay the Plaintiff. 

9. FedEx never calculates the amount of duties and taxes under any 

circumstances. Additionally, Plaintiff never does the conversion rate 

when shipping and delivering to foreign countries. The duties & taxes, 

as well as the conversion, is in all cases done by the customs 

department of the country where the goods are being delivered. 

10. Plaintiff has reconfirmed with the customs department of the 

country where the goods were delivered that both the charges and 

conversion rate are accurate. 

11. Plaintiff has received no payments whatsoever from any source for 

the charges set forth in its Complaint. 

12. Defendant has never disputed that they contracted with the Plaintiff 

to deliver the merchandise in question to the Defendant’s customer, 

and does not dispute that the merchandise referred to on both of its 

invoices was in fact delivered to its customer. 

13. That the Invoices, Statements, Terms, Emails, and other documents 

and exhibits attached to Plaintiff’s motion for summary judgment are 

copies produced by Plaintiff’s records and have been provided to 

counsel by a qualified representative of Plaintiff. I have personally 

reviewed our system to ensure that they accurately reflect the status of 

this account. 

14. That I make this Affidavit upon my personal knowledge. 
{¶ 20} As referenced in Singler’s affidavit, Brandes agreed to the express 

terms and conditions that are applied by FedEx for international shipments. In 

relevant part, the express terms and conditions of the shipping agreements in this 

case provide as follows: 

Duties and Taxes: 

A. In order to complete clearance of certain items through customs, we 

may be required to advance on your behalf certain duties and taxes as 

assessed by customs officials. * * * 

B. Duties and taxes may generally be billed to the sender, the recipient 

or a third party. If the sender fails to designate a payer on the air 

waybill, duties and taxes will automatically be billed to the recipient 

when allowed. * * * REGARDLESS OF ANY PAYMENT 

INSTRUCTIONS TO THE CONTRARY, THE SENDER IS 

ULTIMATELY RESPONSIBLE FOR PAYMENT OF DUTIES AND 

TAXES IF PAYMENT IS NOT RECEIVED. 

(Emphasis sic.) 

{¶ 21} On appeal, Brandes does not dispute that FedEx fulfilled its 

obligations under the shipment agreement by delivering Brandes’ items to the 

Venezuelan recipient in 2015. Nor does Brandes dispute that it has not made 

reimbursement payments to FedEx for the relevant customs charges. However, in 

an effort to rebut FedEx’s evidence, Brandes argues “the undisputed and 

uncontradicted evidence is that the company who received the goods shipped by 

Brandes was responsible to pay the duty and in fact did pay the duty.” Thus, Brandes 

asserts that “there was no evidence that Brandes failed to meet any obligations that 

it had under the contract, as Brandes had no responsibility to pay the duty.” In 

addition, Brandes contends that the evidence demonstrates that “the duty was in 
fact paid” by the receiving party in Venezuela. Alternatively, Brandes suggests that 

issues of fact remain regarding FedEx’s calculation of the duties, taxes, and customs 

charges. 

{¶ 22} In support of its position, Brandes attached a March 31, 2015 

commercial invoice for the shipment of merchandise from Brandes to the 

Venezuelan company, I.V.R.O.C.A., Av. Trajkhovic, Edificio IVROCA PB, Oficina 

IVROCA, Zona Ind. El Tambor, Los Teques – Venezuela (“I.V.R.O.C.A.”). The 

invoice, captioned Invoice No. 2-5637, had a value of $2,300. In addition, Brandes 

attached affidavits from the President of Brandes, Jeffrey Therber, and the Vice 

President of I.V.R.O.C. A., Eros Gobbo. 

{¶ 23} In relevant part, Therber averred as follows: 

2. Brandes exported merchandise in the amount of United States 

Dollars $2,300 to [I.V.R.O.C.A.] in 2015 under invoice 2-5637. 

3. The merchandise was delivered by Federal Express. 

4. The terms of the transaction were DDU – Delivered Duty Unpaid. 

This means that the receiving party pays the duty. 

* * * 

6. In 2015, Brandes received an invoice from FedEx asserting that 

Brandes owed $5,181.23 as invoice 6-473-58638 and $5,121.90 as 

invoice 6-486-69969. 

7. Brandes immediately disputed the invoices and explained to FedEx 

that the duties were the responsibility of the customer, that they had 

been paid, and that FedEx had made a calculation error when 

converting the duty from Venezuelan Currency to American Dollars. 

* * * 
10. Brandes responded with an email to FedEx again explaining to 

FedEx that the receiving party was responsible for the duty. The email 

stated in pertinent part: 

The duties and taxes billed under invoices 6-468-69699 and 6-473-

58630 * * * are to be billed to the consignee (recipient) in each case. 

Consignee is responsible for charges per our trade terms with 

consignee. We have a long-standing relationship with the consignees 

and our terms with them have always been DDU. I’ve attached the 

commercial invoice that covers both shipments. Please contact 

Consignee to invoice them directly. 

{¶ 24} Similarly, Gobbo averred as follows: 

2. Our company imported merchandise in the amount of United States 

Dollars $2300 from Brandes International Co. in 2015 under invoice 

2-5637. 

3. The merchandise was delivered by Federal Express. 

4. In the case of invoice 2-5637, as in the case of 100% of invoices from 

Brandes over the past 50 years (several hundred transactions), the 

responsibility to pay import duties was ours as the importer. 

5. The terms of our transaction with Brandes were DDU per their 

commercial invoice – Delivered Duty Unpaid. This means that we as 

the receiving party pay the duty. The commercial invoice was the only 

document accompanying the goods and the only document to declare 

value, and it explicitly stated terms of DDU. 

6. Never in our 50+ years of doing business with Brandes has Brandes 

as the exporter been responsible for, nor paid, any import duties. 

7. The terms of Federal Express in Venezuela, as well as those of all 

other courier companies (DHL, UPS, etc.) are that any applicable 

import duties must be paid prior to delivery of goods. This is a wellestablished policy to which there are no exceptions. 

8. Our payment records from 2000 to 2018 are complete and they 

show three payments to Federal Express Corporation — two in 2014 

and one in 2015. 
9. The 2015 payment was in the amount of Bs. 13,467.23, which 

equates to the applicable duty on invoice 2-5637 plus IVA, based on the 

duty and exchange rates in effect at that time. 

10. We do not have a copy of Federal Express’s invoice for that payment 

and the person who made that payment does not work here any longer, 

but the payment is recorded as and clearly assumed to be the duty and 

clearance cost associated with the importation of invoice 2-5637. 

11. Our company does not use Federal Express as a shipper so none of 

the payments to Federal Express could be for outbound shipments, 

they are all presumably for costs associated with inbound shipments. 

12. Never in our history of importing (several thousand transactions) 

has our import duty exceeded the value of the goods imported. Duty is 

a fraction of the goods’ value, not a multiple. 

{¶ 25} After careful consideration, we find the trial court erred in granting 

summary judgment in favor of FedEx on its breach of contract claim. In this case, 

there is no dispute that FedEx and Brandes entered into an international shipment 

agreement that required Brandes to bear ultimate responsibility for reimbursing 

FedEx for its payment of duties and taxes. Moreover, the exhibits attached to 

FedEx’s motion for summary judgment demonstrate that FedEx completed 

international shipment services on behalf of Brandes, and advanced payments for 

the duties and taxes charged by the Venezuelan customs department. Specifically, 

the invoices for each shipment set forth the date the shipment entered Venezuelan 

customs, the declared value of the shipment, the “total duties, taxes, customs, and 

other fees” that were advanced by FedEx, and the date of delivery to the recipient. 

Thus, the record supports the existence of a contract and FedEx’s performance 

under the contract. 
{¶ 26} Nevertheless, we find there remain genuine issues of material fact 

concerning whether Brandes breached its obligation to reimburse FedEx, because 

Brandes presented evidence suggesting that the duties and taxes were paid by the 

recipient of the shipped goods. Regarding this provision of the contract, Singler 

averred that FedEx has not yet received payment “from either the Defendant or the 

Defendant’s customer for the delivery charges and the Duties and Taxes paid by the 

Plaintiff with respect to the two (2) separate invoices listed on Exhibit A attached to 

the Plaintiff’s complaint.” In contrast, however, the Vice President of I.V.R.O.C.A., 

Eros Gobbo averred that I.V.R.O.C.A. did, in fact, make a substantial monetary 

payment to FedEx in 2015. The payment was made in Venezuelan currency (“Bs.”), 

“in the amount of Bs. 13,467.23.” Although Gobbo conceded that I.V.R.O.C.A. is no 

longer in possession of the invoice it received from FedEx, Gobbo attested that the 

2015 payment to FedEx “equates to the applicable duty on [the subject shipments], 

based on the duty and exchange rate in effect at that time.” 

{¶ 27} As the parties have presented competing affidavits, we find there 

remain genuine issues of material fact regarding whether FedEx received payment 

from I.V.R.O.C.A., thereby relieving Brandes of its obligation to reimburse FedEx in 

this case. See Telecom Acquisition Corp. I v. Lucic Ents., 2016-Ohio-1466, 62 

N.E.3d 1034, ¶ 93 (8th Dist.). (“When trial courts choose between competing 

affidavits and testimony, they improperly determine credibility and weigh evidence 

contrary to summary judgment standards.”), citing Finn v. Nationwide 

Agribusiness Ins. Co., 3d Dist. Allen No. 1-02-80, 2003-Ohio-4233, ¶ 39. 
{¶ 28} Moreover, even if this court were to accept FedEx’s position that it has 

not been reimbursed for the advanced payments, we find FedEx has failed to 

demonstrate a lack of genuine issues of material fact regarding the element of 

damages. Collectively, the records attached to FedEx’s motion for judgment contain 

various inconsistencies regarding the appropriate exchange rate and the manner in 

which the Venezuelan currency was converted to the U.S. dollar. 

{¶ 29} In this case, the evidence supporting FedEx’s claimed damages 

included copies of two separate invoices that were sent to Brandes for recoupment 

of the advanced payments. (Plaintiff’s exhibits B and C.) Invoice No. 6-473-58638 

reflects that FedEx paid customs duties in the amount of Bs. 59,783.82, 

advancement fees in the amount of Bs. 1,195.68, and processing fees in the amount 

of Bs. 126.00. This totaled Bs. 61,105.50. In turn, the invoice reflects that the 

conversion rate of “VEF-USD .0847916670” was used to convert the fees from Bs. 

to U.S. dollars, for a total of $5,181.23. 

{¶ 30} Similarly, Invoice No. 6-468-69969 reflects that FedEx paid customs 

duties in the amount of Bs. 59,097.82, advancement fees in the amount of Bs. 

1,181.96, and processing fees in the amount of Bs. 126.00. This totaled Bs. 

60,405.78. This invoice also reflects that the conversion rate of “VEF-USD 

.0847916670” was used to convert the fees from Bs. to U.S. dollars, for a total of 

$5,121.90. 

{¶ 31} As discussed, FedEx has demonstrated that it paid the Venezuelan 

government the applicable customs fees in order to complete the shipments on 
Brandes’ behalf. Upon request, FedEx confirmed with the Venezuelan authorities 

that “the assessment and calculation of customs fees were correct.” FedEx also 

provided Brandes with a breakdown of the fees charged in each invoice (the 

“breakdown worksheet”). See plaintiff’s exhibit E. However, on close examination 

of each breakdown worksheet, we find the Venezuelan government only confirmed 

that the total amount of Bs. charged for the duties and taxes on each shipment was 

accurate. The Venezuelan government was not responsible for reconverting the 

charged fees back to U.S. dollars for the purpose of billing Brandes. FedEx 

presumably completed this calculation at the time the invoices were issued. Thus, 

the Venezuelan government did not confirm the amount of U.S. dollars currently 

sought by FedEx in this case. 

{¶ 32} Moreover, and perhaps most importantly, the relevant documents 

attached to FedEx’s motion for summary judgment demonstrate that the breakdown 

worksheets and their corresponding invoices each used different exchange rates in 

calculating amounts owed. As stated, the invoices sent to Brandes for the unpaid 

duties and taxes applied an exchange rate of .0847916670 for each shipment. In 

stark contrast, however, the breakdown worksheets use the exchange rates of 

194.898 and 192.954, respectively, to calculate the total amount of Bs. owed in 

duties and taxes for each shipment. Thus, the conversion rate used to calculate the 

duties owed to the Venezuelan government in Bs., and thereupon paid by FedEx, 

was different than the conversion rate used to calculate the amount owed to FedEx 

in U.S. dollars. On this record, it remains unclear which exchange rate should have 
been applied in this case. It is entirely possible that the breadth of the duties and 

taxes paid by FedEx resulted from a misapplication of the conversion rate that was 

not of their doing. It is equally possible that the significant fees sought in this case 

derived from a calculation error committed by FedEx. Nevertheless, these issues 

must be resolved by a trier of fact. 

{¶ 33} The application of the different exchange rates is undoubtedly 

significant to the issue of damages. For instance, Invoice No. 6-473-58638 reflects 

that FedEx paid the Venezuelan government a total of Bs. 59,783.82 in customs 

duties for one of the shipments. According to the corresponding breakdown 

worksheet, the total figure owed was calculated by using the value of the shipped 

good in U.S. dollars in conjunction with the exchange rate of 194.898. Yet, in 

calculating the amount owed to FedEx for reimbursement, FedEx used the exchange 

rate of .0847916670 to reconvert the Bs. 59,783.82 (plus FedEx’s processing and 

advancement fees) to U.S. dollars — totaling $5,181.23. Had FedEx applied the 

same 194.898 conversion rate used in the breakdown worksheet when reconverting 

the Bs. to U.S. dollars in the corresponding invoice, Brandes would owe FedEx a 

little more than $300 in total fees. 

{¶ 34} Under these circumstances, the breakdown worksheets attached to 

FedEx’s motion for summary judgment raise more questions than answers when 

they are compared to their corresponding invoices. Accordingly, we find the trial 

court erred in granting judgment in favor of FedEx on its breach-of-contract claim. 
{¶ 35} However, the trial court did not err in granting summary judgment in 

favor of FedEx on Brandes’ counterclaims.2 Brandes’ motion for summary 

judgment does not set forth arguments in support of its counterclaim, nor does it 

attach qualified evidence in support of the claims. In addition, the trial court did 

not err in denying Brandes’ motion for summary judgment. The evidence submitted 

in the competing motions for summary judgment establishes that a reasonable jury 

could resolve the breach of contract claim in favor of either party. 

{¶ 36} Brandes’ first assignment of error is sustained. The second 

assignment of error is overruled. 

B. Motion to Strike 

{¶ 37} In its third assignment of error, Brandes argues the trial court erred 

when it denied its motion to strike the unauthenticated exhibits attached to FedEx’s 

motion for summary judgment. Brandes contends that the exhibits are not 

“cognizable documents” of the type contemplated by Civ.R. 56(C). Thus, Brandes 

asserts that the trial court was precluded from considering said exhibits when 

assessing FedEx’s motion for summary judgment. We disagree. 

{¶ 38} A trial court’s determination of a motion to strike is reviewed for an 

abuse of discretion. Squire v. Geer, 117 Ohio St.3d 506, 2008-Ohio-1432, 885 

N.E.2d 213, ¶ 10. An abuse of discretion implies that the court’s attitude is 

 2 To the extent the trial court’s judgment does not expressly address and/or dispose 

of Brandes’ counterclaims, we find judgment on FedEx’s breach-of-contract claim rendered 

the counterclaims moot, thereby constituting a final, appealable order. See Semirale v. 

Jamieson, 8th Dist. Cuyahoga No. 89578, 2008-Ohio-1093. 
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 

217, 219, 450 N.E.2d 1140 (1983). 

{¶ 39} Because granting summary judgment under Civ.R. 56(C) terminates 

litigation without a trial on the merits, “[t]he requirements of the rule must be 

strictly enforced.” Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 360, 604 N.E.2d 

138 (1992). Civ.R. 56(C) enumerates an inclusive list of the materials that may be 

considered in determining a motion for summary judgment. It states: 

Summary judgment shall be rendered forthwith if the pleadings, 

depositions, answers to interrogatories, written admissions, affidavits, 

transcripts of evidence, and written stipulations of fact, if any, timely 

filed in the action, show that there is no genuine issue as to any material 

fact and that the moving party is entitled to judgment as a matter of 

law. 

{¶ 40} When a document does not fall within one of the enumerated 

categories in Civ.R. 56(C), a party may introduce it by incorporating it by reference 

in a properly framed affidavit. Wolk v. Paino, 8th Dist. Cuyahoga No. 94850, 2011-

Ohio-1065, ¶ 26, citing Biskupich v. Westbay Manor Nursing Home, 33 Ohio 

App.3d 220, 515 N.E.2d 632 (8th Dist.1986). Civ.R. 56(E) governs the proper form 

of affidavits. It states: 

Supporting and opposing affidavits shall be made on personal 

knowledge, shall set forth such facts as would be admissible in 

evidence, and shall show affirmatively that the affiant is competent to 

testify to the matters stated in the affidavit. Sworn or certified copies 

of all papers or parts of papers referred to in an affidavit shall be 

attached to or served with the affidavit. The court may permit 

affidavits to be supplemented or opposed by depositions or by further 

affidavits. * * * 

(Emphasis added.) 
{¶ 41} “Personal knowledge has been defined as ‘knowledge of factual truth 

which does not depend on outside information or hearsay.”’ Residential Funding 

Co., L.L.C. v. Thorne, 6th Dist. Lucas No. L-09-1324, 2010-Ohio-4271, ¶ 64, quoting 

Modon v. Cleveland, 9th Dist. Medina No. 2945-M, 1999 Ohio App. LEXIS 6147 

(Dec. 22, 1999). Further, “an affiant’s mere assertion that he has personal 

knowledge of the facts asserted in an affidavit can satisfy the personal knowledge 

requirement of Civ.R. 56(E).” Id. at ¶ 70. An assertion of personal knowledge 

satisfies Civ.R. 56(E) if the nature of the facts in the affidavit combined with the 

identity of the affiant creates a reasonable inference that the affiant has personal 

knowledge of the facts in the affidavit. Id.

{¶ 42} Similarly, “the requirement of Civ. R. 56(E) that sworn or certified 

copies of all papers referred to in the affidavit be attached is satisfied by attaching 

the papers to the affidavit, coupled with a statement therein that such copies are true 

copies and reproductions.” State ex rel. Corrigan v. Seminatore, 66 Ohio St.2d 459, 

467, 423 N.E.2d 105 (1981).3 Documents that have not been sworn, certified, or 

authenticated by way of affidavit “have no evidentiary value.” Mitchell v. Ross, 14 

Ohio App.3d 75, 470 N.E.2d 245 (8th Dist.1984). 

 3 However, describing the attached copies of named documents as “true and 

accurate” is not an express requirement of Civ.R. 56(E) — it is merely an example of an 

appropriate averment. Wells Fargo Bank, N.A. v. Lundeen, 8th Dist. Cuyahoga No. 107184, 

2020-Ohio-28, ¶ 26. By stating in a sworn affidavit that the exhibits attached are “copies” 

of the listed documents, an affiant adequately verifies that the documents are what he or 

she claims them to be. Id., citing U.S. Bank N.A. v. Aguilar-Crow, 7th Dist. Mahoning No. 

15 MA 0113, 2016-Ohio-5391, ¶ 28. 
{¶ 43} In this case, the majority of the evidence attached to FedEx’s motion 

for summary judgment is not of the type listed under Civ.R. 56(C). However, FedEx 

did submit the affidavit of Joseph Singler, which the trial court permitted FedEx to 

supplement pursuant to the authority afforded under Civ.R. 56(E). In relevant part, 

the supplemental affidavit attested to Singler’s personal knowledge as the branch 

manager involved in the shipment of Brandes’ merchandise, incorporated each 

exhibit by reference, and stated that the exhibits “accurately reflect the status of 

[Brandes’] account.” We find the statements within the affidavit satisfied Civ.R. 

56(E)’s personal knowledge requirement. It can be reasonably inferred from 

Singler’s position with FedEx that Singler has personal knowledge of the 

information contained within his affidavit, including the relevant business records. 

In addition, we find Singler’s affidavit provided sufficient information to 

authenticate the attached records. By stating in a sworn affidavit the exhibits 

attached were accurate “copies” of the listed documents, Singler verified that the 

documents were what he claimed them to be. See Evid.R. 901. 

{¶ 44} For the foregoing reasons, we find FedEx complied with the 

requirements of Civ.R. 56 by incorporating the challenged exhibits by reference in a 

properly framed affidavit. Accordingly, the trial court did not abuse its discretion in 

denying Brandes’ motion to strike. 

{¶ 45} Brandes’ third assignment of error is overruled. 

{¶ 46} Judgment affirmed in part, reversed in part. 

It is ordered that appellee and appellant share costs herein taxed. 
It is ordered that a special mandate be sent to the municipal 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. 

 

EILEEN T. GALLAGHER, ADMINISTRATIVE JUDGE 

MARY EILEEN KILBANE, J., CONCURS; 

SEAN C. GALLAGHER, J., CONCURS (WITH SEPARATE CONCURRING 

OPINION); 

SEAN C. GALLAGHER, J., CONCURRING: 

I fully concur with the majority decision and analysis. I write in 

support of the determination that summary judgment is not warranted on FedEx’s 

breach-of-contract claim. 

Under the plain and unambiguous terms of the shipping agreement, 

Brandes is “ultimately responsible for payment of duties and taxes” and FedEx is 

entitled to reimbursement from Brandes “if payment is not received.” There is no 

dispute that FedEx delivered the goods. Nevertheless, there are genuine issues of 

material fact relating to the elements of breach and damages, including whether the 

duties and taxes were paid by the recipient of the goods and whether FedEx’s 

exchange calculations were correct. Here, the evidence presented by both parties 

establishes that these factual issues can be resolved only by a finder of fact and that 

the case should proceed to trial on FedEx’s breach-of-contract claim. 
First, there is a genuine issue of material fact concerning whether the 

duties and taxes were paid by the recipient of the goods. FedEx, which delivered the 

shipments of goods, sent Brandes invoices for the alleged unpaid duties. In the 

supplemental affidavit of FedEx manager Joseph Singler, Singler averred that no 

payment was ever received from Brandes or any other source and that the status of 

the account was correct. On the other hand, Brandes claims that the duties were 

paid by the recipient of the goods. Brandes provided affidavits from representatives 

of the Venezuelan company I.V.R.O.C.A., which was the recipient of the goods. In 

those affidavits, it was stated that the terms of the transaction with Brandes required 

I.V.R.O.C.A. to pay the duty, that the goods were delivered by FedEx, that it is a wellestablished policy in Venezuela that any import duties must be paid prior to delivery 

of goods, and that I.V.R.O.C.A.’s records showed that a 2015 payment was made and 

associated with invoice 2-5637 for the subject goods. 

Second, there is a genuine issue of material fact concerning the 

amount of the duties and taxes that FedEx claims are owed. FedEx claimed it was 

entitled to reimbursement for its payment on behalf of Brandes in the amount of 

$10,303.13. FedEx presented the invoices sent to Brandes and a confirmation letter 

from the Venezuelan government indicating that its assessment of the duties was 

correct. Singler averred in his affidavit that the conversions are done by the customs 

department of the country where the goods are being delivered. On the other hand, 

Brandes maintains that FedEx did not properly calculate the amount of duties that 

were purportedly paid by FedEx. Brandes states that FedEx is claiming an amount 
owed that is 37 times greater than a 12 percent duty that should have been applied. 

Brandes further argues that the documents reflect FedEx made a conversion error 

when it used two different Venezuelan currencies, one to convert from U.S. dollars 

to Venezuelan currency and another when converting back to U.S. dollars. Brandes 

states that the value of the goods was $2,300 and that the actual duty owed should 

have been $276. The affidavits of I.V.R.O.C.A.’s representatives indicated that never 

in the company’s history of importing goods had there been an import duty that 

exceeded the value of the goods imported and that the duty should be a fraction of 

the goods’ value as opposed to a multiple. 

Insofar as competing affidavits were filed in this matter, “[i]n 

summary judgment proceedings, a court may not weigh the evidence or judge the 

credibility of sworn statements, properly filed in support of or in opposition to a 

summary judgment motion, and must construe the evidence in favor of the 

nonmoving party.” Telecom Acquisition Corp. I v. Lucic Ents., 2016-Ohio-1466, 62 

N.E.3d 1034, ¶ 93 (8th Dist.), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

249, 106 S.Ct. 2505, 91 L.E.2d 202 (1986). Upon the evidence presented, a 

reasonable jury could resolve the breach of contract claim in favor of either party. 

Accordingly, I agree that summary judgment is not warranted on the 

breach-of-contract claim and that the case should be remanded for a trial on this 

claim. I also concur with the majority’s determination that the trial court did not err 

in granting summary judgment in favor of FedEx on Brandes’ counterclaims and 

that the trial court did not abuse its discretion in denying Brandes’ motion to strike.