[Cite as Harrah v. Mike Enyart & Sons, Inc., 2019-Ohio-64.]

                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                      LAWRENCE COUNTY


TODD HARRAH,                                          :

        Plaintiff-Appellee,                           :   Case No. 18CA8

        vs.                                           :

MIKE ENYART AND SONS, INC.,                           :   DECISION AND JUDGMENT ENTRY


        Defendant-Appellant.                          :


                                            APPEARANCES:

Scott K. Sheets and Matthew L. Ward, Huntington, West Virginia, for appellant.

Brigham M. Anderson, Ironton, Ohio, for appellee.


CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED:1-7-19
ABELE, J.

        {¶ 1} This is an appeal from a Lawrence County Common Pleas Court judgment in favor

of Todd Harrah, plaintiff below and appellee herein. Mike Enyart and Sons, Inc., defendant

below and appellant herein, assigns the following errors for review:

                FIRST ASSIGNMENT OF ERROR:

                “THE TRIAL COURT ABUSED ITS DISCRETION AND
                COMMITTED CLEAR ERROR BY UTILIZING THE
                ‘ORDINARY INCOME’ LINE FROM THE SUBCHAPTER-S
                CORPORATION’S FEDERAL INCOME TAX RETURN TO
                DETERMINE ‘NET PROFITS’ FOR PURPOSES OF
                PROFIT-SHARING CALCULATION.”
LAWRENCE, 18CA8                                                                           2

               SECOND ASSIGNMENT OF ERROR:

               “THE TRIAL COURT ABUSED ITS DISCRETION AND
               OTHERWISE MADE A CLEAR ERRONEOUS FINDING BY
               FAILING TO ASSIGN THE PLAINTIFF-APPELLEE’S HEALTH
               INSURANCE COSTS AGAINST HIS PROFIT-SHARING
               WHEN THE TWO OTHER COMPANY EMPLOYEES WHO
               HAD HEALTH INSURANCE AND WHO SHARED IN
               COMPANY PROFITS PAID FOR THEIR HEALTH
               INSURANCE THROUGH THEIR PROFITS.”

               THIRD ASSIGNMENT OF ERROR:

               “THE TRIAL COURT ABUSED ITS DISCRETION AND
               OTHERWISE MADE A CLEAR ERRONEOUS FINDING BY
               FAILING    TO   HAVE    THE   PLAINTIFF-APPELLEE
               REIMBURSE     DEFENDANT-APPELLANT     FOR    THE
               KINGDOM MOTORCYCLE TRAILER AND GOLF CART AT
               ISSUE   IN   THE   TRIAL   BELOW    FOR   WHICH
               DEFENDANT-APPELLANT HAD PAID AND WHICH THE
               TRIAL COURT AWARDED TO PLAINTIFF-APPELLEE.”

               FOURTH ASSIGNMENT OF ERROR:

               “THROUGH     ITS   FUNDAMENTAL      MISTAKE    IN
               DETERMINING DEFENDANT-APPELLANT’S NET PROFITS
               FOR     PURPOSES      OF     PLAINTIFF-APPELLEE’S
               PROFIT-SHARING, THE TRIAL COURT ABUSED ITS
               DISCRETION AND OTHERWISE MADE A CLEAR
               ERRONEOUS FINDING BY FAILING TO AWARD
               DEFENDANT-APPELLANT      ITS  OVERPAYMENT     OF
               PROFIT-SHARING TO PLAINTIFF-APPELLEE.”

       {¶ 2} In 2006, Mike Enyart incorporated Mike Enyart and Sons, Inc.      In 2008, the

company became financially distressed, and Mike asked his father, Bill Enyart, for a

cash-infusion. Around that time, Mike made Tom Enyart, Mike’s brother, a fifty-percent owner

of the company. The brothers and Bill later met with appellee to discuss an employment

arrangement.      During the meeting, the parties entered into an oral employment and
LAWRENCE, 18CA8                                                                                 3

profit-sharing agreement with appellee.

       {¶ 3} Appellee later alleged that appellant failed to fulfill the terms of the parties’

agreement and filed a complaint to recover the sums he alleged that appellant owed.

       {¶ 4} Appellant, however, filed a counterclaim and alleged that appellee had received

more than the amount due to him under the profit-sharing agreement. Appellant also requested

the return of a motorcycle trailer and a golf cart in appellee’s possession because, appellant

asserted, both items rightfully belonged to the company. Appellant requested judgment in the

amount of $83,434.48.

       {¶ 5} At a trial before a magistrate, the parties primarily disputed three issues: (1) the

meaning of “net profits” as contemplated under the oral profit-sharing agreement; (2) whether the

parties’ oral employment agreement afforded appellee health insurance; and (3) whether appellee

had any remaining sums due under the profit-sharing agreement, or whether appellant had

overpaid appellee.

       {¶ 6} Appellee testified that in April 2008, he met with Bill, Tom, and Mike, and they

verbally offered appellee a job. Appellee stated that the Enyarts agreed to match what appellee’s

then-employer offered him, plus ten percent of the net profits. Appellee explained that his

then-employer (1) paid him $1,400 per week; (2) provided him with a company credit card, cell

phone and car; and (3) paid for his health insurance. Appellee claimed that “from the minute

[they] had the meeting * * * [health insurance] was pretty much set in stone.”

       {¶ 7} Appellee related that although the parties did not reduce their agreement to writing,

he believed that the net profits would be determined based upon the company’s tax returns.

Appellee also testified that after he obtained health insurance, he gave the paperwork to Christie
LAWRENCE, 18CA8                                                                                  4

Enyart, appellant’s vice president, and Christie paid for it. Appellee further explained that while

employed at appellant, he used the company’s credit card to purchase a $6,300 motorcycle trailer

and asked Christie to place it in the company’s name. Appellee related that he had been going

through a divorce at the time and did not want the trailer in his name. Appellee indicated that

after he received the trailer, he spent approximately $1,200 to $1,500 to accessorize the trailer.

Appellee additionally stated that while employed at appellant, appellant placed a $2 million order

with a supplier. Appellee claimed that as a result of the large order, the supplier agreed to give

Mike a golf membership and told Tom and appellee that they each could have a golf cart.

       {¶ 8} Mike Enyart, however, testified that the parties did not discuss how appellee’s

profit share would be calculated. Instead, he believed the term, “net profits,” meant “whatever is

left over after you pay all your bills.” Mike stated that the parties had not discussed how they

would define, “net profits,” but instead, he believed that Christie would calculate the amount of

“net profits.” Mike explained that he did not know how Christie computed net profits. Mike

also testified that he and appellee did not discuss health insurance and that it “was between

[appellant] and accounting and the office.” Mike related that he did not tell appellee that health

insurance premiums would be deducted from appellee’s profit-sharing and that he had no

discussion with his brother or father. Mike additionally stated, however, that both he and his

brother, Tom, received health insurance through the company.

       {¶ 9} Appellee called Christie on cross-examination and she testified that she managed

the company’s finances. Christie stated that appellant hired appellee in April 2008 and agreed to

pay appellee ten percent of the company’s net profits. Christie denied that she used the tax

returns to calculate appellee’s profit-share. She admitted, however, that when she gave her
LAWRENCE, 18CA8                                                                                 5

deposition about a year earlier, she stated that she used the tax returns to arrive at net profit.

Christie claimed that she “was * * * confused” when she gave her deposition testimony and

explained that she and appellee “never looked at tax returns for anything.” Christie thus stated

that her deposition testimony was incorrect.

       {¶ 10} Christie then testified that she used the company’s financial statements to

determine net profits and that she and appellee reviewed the financial statements to calculate

appellee’s profit-share. Christie also explained that until 2011 or 2012, the company’s financial

statements were not audited.

       {¶ 11} Later, when appellant called Christie on direct examination, Christie related that

she did not discuss with Mike or Tom the precise calculation of appellee’s “net profits,” but did

verify that she should use the “net income” figure from the company’s financial statements.

Christie indicated that she did not use the company’s tax returns to obtain “net income” because

the company’s tax returns were not complete until September or October of the following year.

       {¶ 12} On cross-examination, Christie denied that she used a profit and loss statement

from Quickbooks to determine the amount of appellee’s profit-share, and instead claimed that

she kept “like a piece of paper.” Christie stated, however, that she did not save the paper.

Rather, “[a]t the end when it would get done you’d just toss it.” Christie further agreed that

when she gave her deposition, she “testified that net profit came from the tax return from the

ordinary business income,” but she “was confused.”

       {¶ 13} On re-direct, Christie explained her prior deposition testimony was “confused”

because

       everybody was, when they were talking about profits, cause there’s so many
LAWRENCE, 18CA8                                                                                    6

       different label’s [sic] of profits and that’s what I said. I never really looked at the
       tax returns for anything. I looked at the audited financial statements and that’s
       where I kept getting confused when he was pointing out the tax returns on the
       profits. Cause we didn’t really call it . . . it was called profit sharing but we
       didn’t call it profits[;] we went by the net income is what it was called. Is what I
       associated everything with. Like I said that was my confusion.

       {¶ 14} Christie additionally explained that in 2009, the first year that the company began

to realize a profit, she asked appellee and Tom how to determine the amount of appellee’s

profit-share. She stated that she “had the financials” and she “even remember[s] him going in

there and I was like okay, now this is what we’re going off of is the net income?” Christie

testified that “everybody said yes and that’s how we took it from there on.” She later clarified

that she took “the audited financials,” the “binder from the accountant,” and she “opened it up”

and “said okay, is this what we’re going off of.” Christie indicated that both appellee and Tom

were present when she asked what figure to use to calculate appellee’s profit-share and appellee

did not object “to using * * * the financial statements for purposes of determining profit

sharing.”

       {¶ 15} Christie also stated that (1) appellee, Mike, and Tom received health insurance,

and the company deducted the cost of the health insurance from its tax returns; (2) appellee had

informed her that the cost of his health insurance would be deducted from the amount of his

profit share; (3) she approved appellee’s request to purchase a motorcycle trailer and title it in

appellant’s name because appellee was going through a divorce.

       {¶ 16} Christie also testified that appellant paid for appellee’s golf cart. She explained

that one of appellant’s suppliers had indicated that the supplier would credit appellant’s account,

but Christie stated that the supplier did not credit appellant’s account and, thus, she believes that
LAWRENCE, 18CA8                                                                                  7

appellee should either pay for the golf cart or give it to appellant.

       {¶ 17} Bill testified that during the initial meeting with appellee, the Enyarts promised to

match what appellee had been receiving from his then-employer, plus ten percent of the

company’s net profits at the end of the year. Bill also understood the employment offer to

include health insurance.

       {¶ 18} Tom similarly testified that the Enyarts agreed to match appellee’s compensation

package with his then-employer, plus ten percent of the net profits.         Tom explained that

appellee’s then-employer paid appellee $1,400 per week and provided appellee with a car, cell

phone, credit card, and health insurance.         Tom additionally stated that appellee’s health

insurance was part of the compensation package and that the parties did not intend to deduct it

from the amount of appellee’s profit-share.

       {¶ 19} Kevin Ritz testified that he has been appellant’s accountant since March 2012.

Ritz stated that he would never use the amount of ordinary income reported on line 21 of a

company’s federal tax return to calculate the amount due an individual under a profit-sharing

agreement. Ritz explained that the amount reported on line 21 does not account for deductions,

such as depreciation.

       {¶ 20} On December 18, 2017, the magistrate issued a decision and determined to

ascertain the amount of net profits due appellee by considering the amount shown on line 21 of

the company’s federal tax return. Although, the magistrate recognized that appellant’s expert

witness stated that generally accepted accounting principles suggest using audited financial

statements for profit sharing agreements, the magistrate observed, however, that when appellee

began to work for the company and during his first three years of employment, the company did
LAWRENCE, 18CA8                                                                                8

not have audited financial statements. Instead, “[t]he only available method of determining ‘net

profits’ for the years 2008-2011 was to rely on the tax returns and ordinary business income.”

The magistrate thus rejected appellant’s suggestion that the parties intended to use audited

financial statements to determine the amount of net profits.

       {¶ 21} The magistrate next determined that appellee’s ten percent share of the company’s

net profits throughout the course of his employment totaled $730,013.36. The magistrate found

that appellee had received $570,008, and that he had a remaining balance due of $203,005.30.

The magistrate then considered whether to deduct any other amounts from the balance due to

appellee and found that some deductions were in order, including $96,876.26 for various

personal purchases appellee had made with company funds. The magistrate did not, however,

deduct the cost of appellee’s health insurance premiums because “the preponderance of the

evidence establishes the [appellee] was offered the same benefit and compensation package as he

had at his former employer plus ten percent of net profits. The plaintiff’s former employer had

paid one hundred percent of his health insurance premiums.”         The magistrate additionally

observed that both Mike and Tom “also took out health insurance policies and their premiums

were never charged against their respective profit sharing plans.” The magistrate further noted

that the company took a tax deduction for the health insurance premiums.

       {¶ 22} The magistrate did agree that appellee should bear the cost of the motorcycle

trailer and awarded appellee the trailer and charged its cost, $6,300, against his profit-sharing

amount.

       {¶ 23} The magistrate also determined that appellee “received a golf cart as a ‘thank you’

from a vendor.” The magistrate noted that appellant paid for the golf cart and expected the
LAWRENCE, 18CA8                                                                                  9

vendor to “pay” for the golf cart by offering appellant credits or a discount, but the evidence did

not sufficiently establish whether the vendor followed through with its promise. The magistrate

nevertheless found that the golf cart was a gift to appellee. The magistrate also recognized that

Mike received a golf membership and Tom received a golf cart, and that neither reimbursed the

company or otherwise had the costs charged against their share of the net profits.

       {¶ 24} Therefore, the magistrate awarded appellee $99,829.04, and dismissed appellant’s

counterclaim.

       {¶ 25} Appellant subsequently filed objections to the magistrate’s decision. Appellant

objected to the magistrate’s profit-sharing calculation and determination that appellee’s

profit-share over the years totaled $730,013.36. Appellant argued that the magistrate improperly

calculated profits by examining the amount of ordinary income reported on appellant’s tax

returns. Appellant claimed that its expert witness testified that generally accepted accounting

practices indicate that net profits should be determined by examining a company’s financial

statements. The expert further explained that even if net profits were calculated by using the

figure contained on the company’s tax returns, then standard deductions must also be taken into

account.   Appellant thus argued that the correct figure is $6,532,402, resulting in total

profit-sharing for appellee of $653,240.20.

       {¶ 26} Appellant also objected to the magistrate’s determination that (1) the health

insurance premiums appellant paid for appellee were not chargeable against his profit-sharing;

(2) appellee did not need to pay for the golf cart. Appellant claimed that it paid $5,800 for the

golf cart and that the magistrate should have offset $5,800 from the amount of appellee’s

profit-sharing. Appellant thus requested the court to reject the magistrate’s decision, to award
LAWRENCE, 18CA8                                                                                  10

appellant $30,246 and release the motorcycle to appellant.

       {¶ 27} On March 20, 2018, the trial court overruled appellant’s objections to the

magistrate’s decision. The court determined that ten percent of the net profits equaled $730,013,

that appellee had already received $570,008, thus leaving a balance of $203,005. From this, the

court subtracted the value of other items appellee received, $96,876.26, as well as $6,300 for the

motorcycle trailer. The court also dismissed appellant’s counterclaim. This appeal followed.

       {¶ 28} Appellant’s four assignments of error all challenge the trial court’s factual findings

and its ultimate judgment. Because the same standard of review applies to the four assignments

of error, we combine our discussion of them.

       {¶ 29} In its first assignment of error, appellant challenges the trial court’s decision to

calculate the net profits due to appellee by considering appellant’s federal tax return. Appellant

argues that its expert witness testified that no profit-sharing agreement would use a company’s

ordinary income as set forth on line 21 of the company’s federal tax returns to determine a

company’s net profits. Appellant claims that the trial court should have followed its expert

witness’s testimony and used the company’s financial statements to determine net profits.

       {¶ 30} In its second assignment of error, appellant challenges the trial court’s finding that

appellee’s health insurance premiums were part of his compensation package and that the

premiums should not be charged against his share of the net profits.

       {¶ 31} In its third assignment of error, appellant contests the trial court’s decision to

award appellee the golf cart and the motorcycle trailer without remuneration.

       {¶ 32} In its fourth assignment of error, appellant argues that the trial court’s finding that

appellee is entitled to $99,829.04 is against the manifest weight of the evidence.
LAWRENCE, 18CA8                                                                                11

                                                A

       {¶ 33} Appellate courts will uphold a trial court’s judgment so long as the manifest

weight of the evidence supports it. State v. Arnold, 147 Ohio St.3d 138, 2016-Ohio-1595, 62

N.E.3d 153, ¶ 63; Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984);

C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus

(“Judgments supported by some competent, credible evidence going to all the essential elements

of the case will not be reversed by a reviewing court as being against the manifest weight of the

evidence.”). When an appellate court reviews whether a trial court’s decision is against the

manifest weight of the evidence, the court “‘“weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts in the

evidence, the [fact-finder] clearly lost its way and created such a manifest miscarriage of justice

that the [judgment] must be reversed * * *.”’” Eastley v. Volkman, 132 Ohio St.3d 328,

2012-Ohio-2179, 972 N.E.2d 517, ¶ 20 (clarifying that the same manifest-weight standard

applies in civil and criminal cases), quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750

N.E.2d 176 (9th Dist.2001), quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541

(1997). A reviewing court may find a trial court’s decision against the manifest weight of the

evidence only in the “‘exceptional case in which the evidence weighs heavily against the

[decision].’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1983); accord State v. Lindsey, 87 Ohio St.3d 479, 483,

721 N.E.2d 995 (2000). Moreover, when reviewing evidence under the manifest weight of the

evidence standard, an appellate court generally must defer to the fact-finder’s credibility

determinations. Eastley at ¶ 21. As the Eastley court explained:
LAWRENCE, 18CA8                                                                                  12

       “‘[I]n determining whether the judgment below is manifestly against the weight of
       the evidence, every reasonable intendment must be made in favor of the judgment
       and the finding of facts. * * *
               If the evidence is susceptible of more than one construction, the reviewing
       court is bound to give it that interpretation which is consistent with the verdict and
       judgment, most favorable to sustaining the verdict and judgment.’”


Id., quoting Seasons Coal Co., 10 Ohio St.3d at 80, fn. 3, quoting 5 Ohio Jurisprudence 3d,

Appellate Review, Section 60, at 191–192 (1978).

       {¶ 34} Consequently, “we should not reverse a judgment merely because the record

contains evidence that could reasonably support a different conclusion.” Bugg v. Fancher, 4th

Dist. Highland No. 06CA12, 2007-Ohio-2019, 2007 WL 1225734, ¶ 9. Instead, as we explained

in Bugg:

                It is the trier of fact’s role to determine what evidence is the most credible
       and convincing. The fact finder is charged with the duty of choosing between
       two competing versions of events, both of which are plausible and have some
       factual support. Our role is simply to insure the decision is based upon reason
       and fact. We do not second guess a decision that has some basis in these two
       factors, even if we might see matters differently. Rather, we must defer to the
       trier of fact in that situation.

Id. at ¶ 9.   As such, when there are two fairly reasonable views of the evidence or two

conflicting versions of events, neither of which is unbelievable, we will not choose which one is

more credible. State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).

       {¶ 35} Although an appellate court will ordinarily afford great deference to a trial court’s

factual findings, the court will not afford any deference to a trial court’s application of the law.

Instead, the appellate court will independently review whether the trial court properly applied the

law. Powell v. Vanlandingham, 4th Dist. Washington No. 10CA24, 2011-Ohio-3208, 2011 WL

2571018, ¶ 28, citing Lovett v. Carlisle, 179 Ohio App.3d 182, 2008-Ohio-5852, 901 N.E.2d 255
LAWRENCE, 18CA8                                                                                13

(4th Dist.), ¶ 16; Pottmeyer v. Douglas, 4th Dist. Washington No. 10CA7, 2010-Ohio-5293,

2010 WL 4273232, ¶ 21.

          {¶ 36} We also observe that in general, the decision to adopt, reject, or modify a

magistrate’s decision lies within the discretion of the trial court and should not be reversed on

appeal absent an abuse of discretion.       Anderson v. Anderson, 4th Dist. No. 16CA3571,

2017-Ohio-2827, 86 N.E.3d 349, 2017 WL 2241610, ¶ 9; Barlow v. Barlow, 9th Dist. Wayne

No. 08CA0055, 2009-Ohio-3788, ¶ 5. An abuse of discretion connotes more than an error of

law or judgment; it implies that the trial court’s attitude is unreasonable, arbitrary or

unconscionable.     E.g., Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

                                                B

          {¶ 37} Appellant’s assignments of error center upon the terms of the parties’ oral

employment and profit-sharing contract. “‘A contract is generally defined as a promise, or a set

of promises, actionable upon breach.       Essential elements of a contract include an offer,

acceptance, contractual capacity, consideration (the bargained for legal benefit and/or detriment),

a manifestation of mutual assent and legality of object and of consideration.’” Kostelnik v.

Helper, 96 Ohio St. 3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 16, quoting Perlmuter Printing Co.

v. Strome, Inc., 436 F.Supp. 409, 414 (N.D.Ohio 1976). “A meeting of the minds as to the

essential terms of the contract is a requirement to enforcing the contract.” Id., citing Episcopal

Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations, 61 Ohio St.3d 366, 369, 575 N.E.2d

134 (1991). “‘In order for a meeting of the minds to occur, both parties to an agreement must

mutually assent to the substance of the exchange.’” Champion Gym & Fitness, Inc. v. Crotty,
LAWRENCE, 18CA8                                                                                14

178 Ohio App.3d 739, 2008-Ohio-5642, 900 N.E.2d 231, ¶ 12 (2d Dist.), quoting Miller v.

Lindsay-Green, Inc., 10th Dist. Franklin No. 04AP-848, 2005-Ohio-6366, 2005 WL 3220215, ¶

63.

       {¶ 38} Generally, an oral agreement may be enforceable provided there “is sufficient

particularity to form a binding contract.” Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985,

770 N.E.2d 58, ¶ 15.    “Proof of the terms of an oral contract rarely exists with the level of

formality found in written contracts. Hence, the terms of an oral contract may be shown from

the parties’ words, deeds, acts, and silence.” Kodu v. Medarametla, 1st Dist. Hamilton No.

C-160319, 2016-Ohio-8020, 2016 WL 7131035, ¶ 9, citing Kostelnik at ¶ 15.

                                                1

       {¶ 39} Appellant first challenges the trial court’s conclusion that the term “net profits”

means the amount of ordinary income shown on line 21 of the company’s federal tax return.

Instead, appellant claims that the parties’ conduct shows that they intended the term to mean the

net profits as shown on the company’s financial statements.

       {¶ 40} After our review, in the case at bar we do not believe that the trial court’s finding

that “net profits” means the amount of ordinary income shown on line 21 of the company’s

federal tax return is against the manifest weight of the evidence. Although the parties dispute

how the company should calculate “net profits,” some evidence supports a finding that appellee’s

profit-share would be calculated using the amount shown on line 21 of the company’s federal tax

return. At trial, Christie Enyart, the vice president and individual in charge of determining the

amount of appellee’s profit-share, testified that she used the company’s financial statements to

ascertain the net profits. As appellee’s counsel noted, however, Christie testified during her
LAWRENCE, 18CA8                                                                               15

deposition that she referred to the company’s tax returns to determine the net profits. At trial,

Christie tried to explain that she simply was confused when she gave her deposition testimony.

Later during her testimony, she asserted that in 2009, when she initially asked appellee and Tom

what figure to use when determining net profits, she showed appellee and Tom the “audited”

financial statements. However, the undisputed testimony shows that the company did not have

“audited” financial statements until 2012. Thus, the court could have found Christie’s testimony

that she relied upon the company’s financial statements confused and unworthy of belief. The

court could have instead determined that Christie’s deposition testimony established that she

used the company’s tax returns to calculate net profits and changed her story to defend against

appellee’s claim for unpaid sums. Eaton v. Blackburn, dba Gallipolis Business College, 4th

Dist. Gallia No. 78 CA 7, 1981 WL 5905 (Jan. 23, 1981), *1 (noting that when parties present

conflicting evidence regarding meaning of “net profits,” “the trier of fact must determine the

credibility of the witnesses and resolve the conflict”). Consequently, we do not believe that the

trial court’s decision to use the company’s tax returns to ascertain the amount of net profits due

appellee is against the manifest weight of the evidence.

       {¶ 41} Accordingly, based upon the foregoing reasons, we overrule appellant’s first

assignment of error.

                                                2

       {¶ 42} In its second assignment of error, appellant challenges the trial court’s conclusion

that appellee’s health insurance premiums should not be charged against his ten percent of the net

profits. Appellant claims that the evidence shows that the parties did not intend to include

health insurance coverage in appellee’s compensation package.
LAWRENCE, 18CA8                                                                              16



       {¶ 43} Once again, the parties presented conflicting testimony regarding appellee’s health

insurance premiums and whether appellant’s offer of employment contemplated paying for

appellee’s health insurance. Everyone present at the meeting when appellant offered appellee a

job, except Mike, testified that appellee’s compensation package included health insurance.

Tom testified that appellant agreed to match the compensation package appellee had been

receiving from his then-employer and that the compensation package included health insurance.

Bill likewise testified that appellee’s employment with appellant contemplated health insurance

coverage.    Appellee additionally stated that he believed appellant would provide health

insurance coverage. In light of this evidence, we will not second-guess the trial court’s finding

that appellant agreed to pay appellee’s health insurance premiums.

       {¶ 44} We note, however, that appellant offers several other reasons to show that the

court’s finding that appellee’s compensation package included health insurance is against the

manifest weight of the evidence. Appellant asserts that the following evidence illustrates that

health insurance was not part of appellee’s compensation package: (1) appellee did not obtain an

insurance policy until approximately a year and one-half after he started working for appellant;

(2) no other employees of the company received company-provided health insurance; and (3)

Mike and Tom obtained health insurance at the same time as appellee and they paid for their

health insurance from the profits.

       {¶ 45} We do not believe that the foregoing evidence shows that the court’s finding is

against the manifest weight of the evidence. Three of the four people present at the meeting

during which appellant offered appellee a job testified that the job offer included health
LAWRENCE, 18CA8                                                                                    17

insurance. The trial court could have chosen to believe those three individuals’ testimony and

could have reasonably discounted any subsequent evidence that appellant believes negates a

finding that appellee’s compensation package included health insurance.

       {¶ 46} Accordingly, based upon the foregoing reasons, we overrule appellant’s second

assignment of error.

                                                  3

       {¶ 47} In its third assignment of error, appellant asserts that the trial court erred by failing

to either (1) require appellee to reimburse appellant for the cost of the motorcycle trailer or (2)

award the motorcycle trailer to appellant. Appellant also argues that the trial court erred by

failing to require appellee to reimburse appellant for the golf cart.

       {¶ 48} First, with respect to the motorcycle trailer, we observe that the trial court did, in

fact, find that appellee should be responsible for the cost of the motorcycle trailer. Additionally,

the court charged the cost of the motorcycle trailer against appellee’s share of the outstanding net

profits. We therefore reject appellant’s argument that the court failed to require appellee to bear

the cost of the motorcycle trailer.

       {¶ 49} Second, concerning the golf cart appellant asserts that the evidence shows that one

of appellant’s suppliers had offered to pay for appellee’s golf cart in the form of a credit to

appellant’s account. Appellant contends that it purchased appellee’s golf cart, but it did not

receive the promised credit. Appellant thus argues that because it paid for the golf cart, appellee

must reimburse appellant for its cost.

       {¶ 50} The trial court, however, agreed with the magistrate’s determination that the golf

cart was a gift. The court noted that Tom also received a golf cart and that Mike received a golf
LAWRENCE, 18CA8                                                                                18

membership–both of which appellant paid for–and that neither Tom nor Mike reimbursed

appellant for the costs. The court thus could have reasonably determined that the company

likewise did not expect appellee to reimburse it for the cost of his golf cart. We therefore do not

believe that the court’s finding that the golf cart represents a gift to appellee is against the

manifest weight of the evidence.

       {¶ 51} Accordingly, based upon the foregoing reasons, we overrule appellant’s third

assignment of error.

                                                4

       {¶ 52} In its fourth assignment of error, appellant challenges the trial court’s judgment to

award appellee $99,829.04. Appellant contends that if the court used the net profits as shown on

the company’s financial statements and deducted the cost of golf cart, the motorcycle trailer, and

health insurance, then appellee owes appellant $29,711.06.

       {¶ 53} We, however, believe that our disposition of appellant’s first three assignments of

error also disposes of its fourth assignment of error. In our discussion of appellant’s first three

assignments of error, we rejected the arguments that the court’s determinations regarding the net

profits, the golf cart, the motorcycle trailer, and health insurance were against the manifest

weight of the evidence. We therefore disagree with appellant that appellee owes it $29,711.06.

       {¶ 54} Accordingly, based upon the foregoing reasons, we overrule appellant’s fourth

assignment of error and affirm the trial court’s judgment.

                                                             JUDGMENT AFFIRMED.
LAWRENCE, 18CA8                                                                                  19




                                      JUDGMENT ENTRY

        It is ordered that the judgment be affirmed and that appellee recover of appellant the 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 Lawrence County
Common Pleas Court to carry this judgment into execution.

       A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

       Hoover, P.J. & McFarland, J.: Concur in Judgment & Opinion

                                                      For the Court




                                                      BY:
                         Peter B. Abele, Judge




                                     NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
LAWRENCE, 18CA8   20
