[Cite as Wajda v. M&J Automotive, Inc., 2010-Ohio-6584.]
                          STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                      SEVENTH DISTRICT

CHESTER D. WAJDA,                                    )
                                                     )
        PLAINTIFF-APPELLEE,                          )
                                                     )
VS.                                                  )          CASE NO. 10-MA-7
                                                     )
M&J AUTOMOTIVE, INC. d.b.a.                          )               OPINION
MONTROSE BUICK, PONTIAC, GMC,                        )
CADILLAC,                                            )
                                                     )
        DEFENDANT-APPELLANT.                         )

CHARACTER OF PROCEEDINGS:                            Civil Appeal from Court of Common
                                                     Pleas of Mahoning County, Ohio
                                                     Case No. 08CV278

JUDGMENT:                                            Affirmed

APPEARANCES:
For Plaintiff-Appellee                               Attorney Michael D. Rossi
                                                     151 East Market Street
                                                     P.O. Box 4270
                                                     Warren, Ohio 44483

For Defendant-Appellant                              Attorney Carl Edward Patrick
                                                     3960 Medina Road
                                                     Akron, Ohio 44333




JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                     Dated: December 30, 2010
[Cite as Wajda v. M&J Automotive, Inc., 2010-Ohio-6584.]
DONOFRIO, J.

        {¶1}    Defendant-appellant M&J Automotive, Inc. d.b.a. Montrose Buick
Pontiac GMC Cadillac (Montrose) appeals from an adverse judgment entered in the
Mahoning County Common Pleas Court.                   Through its two assignments of error,
Montrose posits that the evidence introduced at trial cannot support the damage
award granted to plaintiff-appellee Chester D. Wajda (Wajda) in his wage claim
against Montrose, his former employer.
        {¶2}    Montrose is a factory-authorized car dealership located in Hermitage,
Pennsylvania. (Brief of Appellant at 2.) In the months prior to August 2007, Wajda
and John Price (Price), a personal acquaintance of Wajda and salesman at
Montrose, engaged in discussions regarding employment opportunities at Montrose.
(Tr. 38.) Price informed Wajda that Jack Dugan (Dugan), a general manager at
Montrose, was attempting to build an experienced sales team and was offering
competitive compensation packages to achieve this goal. (Tr. 13, 25-26; Deposition
of Jack Dugan at 4-5.)
        {¶3}    At the time, Wajda was an employee of Sweeney Buick (Sweeney) in
Youngstown, Ohio. (Tr. 17.)            Wajda, however, had recently been involved in a
dispute with management at Sweeney over payment for a particular sale, and so
decided to meet with Dugan to discuss the possibility of employment at Montrose.
(Tr. 17, 36-38.)
        {¶4}    Dugan himself was a recent addition to Montrose, having been hired to
expand the sales staff and bolster business. (Depo. at 4-5, 10-11.) To that end,
Dugan suggested in his testimony that he could make deals independently of upper
management to attract desirable personnel. (Depo. at 20-21.)              Citing Montrose’s
relatively weak base salary and poor reputation, Dugan related that it was necessary
to bring in experienced, established salespersons at a guaranteed pay rate for an
introductory period. (Depo. at 6.) According to Dugan, most of the staff he recruited
came in with guarantees of $4,000 to $8,000 per month for somewhere between
three and six months. (Depo. at 7-8.) Dugan noted that he “pretty much brought in
people at the watermark they’re leaving.” Id.              Dugan was never apprised of any
                                                                              -2-


dissatisfaction with his hiring practices, and Montrose does not dispute that Dugan
operated with relatively little oversight. (Depo. at 27.)
       {¶5}   Having formerly been Wajda’s sales manager at Sweeney, Dugan
remembered Wajda as being “high performing” and “a good used car salesman,”
characterizing him as “a welcome addition to our sales team” at Montrose. (Depo. at
4, 25.) While he was unable to recall details of any agreement, Dugan maintained
that Wajda “came in on some type of guarantee.” (Depo. at 5.) However, there was a
considerable amount of conflict in the testimony on this point.
       {¶6}   While Dugan was adamant that Wajda had a guarantee in place, Dugan
also said that Price directly negotiated the terms. (Depo. at 5-6.) Price, however,
stated that he was not involved in the final discussion of compensation, recalling that
he purposely left the room when Dugan and Wajda discussed pay because such
matters were generally “personal between the general sales manager and the
salesperson.” (Tr. 14.)    Price further testified that he personally came in with a
guarantee of $7,000 per month for six months, but that he did not have firsthand
knowledge of anyone else’s compensation plan, and that any information Price had
regarding a guarantee for Wajda came from either Wajda or Dugan. (Tr. 15-16.)
       {¶7}   Wajda contended that, in early discussions with Price, he informed
Price that he was looking for a guarantee of $6,000 per month for six months. (Tr.
28.) According to Wajda, Price thought Dugan would be able to accommodate his
demands. (Tr. 38.) Wajda said that, in subsequent negotiations with Dugan, he
presented this figure and explained to Dugan that he had been having success at
Sweeney and was unwilling to compromise the financial stability of his family without
a comparable guarantee. (Tr. 28.) Wajda testified that he ultimately left his
employment at Sweeney and joined the sales team at Montrose for a guarantee from
Dugan of $4,500 per month for four months and an increased commission
percentage plan. Id. Wajda claimed this agreement was memorialized in a written
contract signed by both him and Dugan. (Tr. 41-42.) However, Wajda alleged that,
on the day of his termination from Montrose, someone had rummaged through his
                                                                              -3-


desk and that this document was missing thereafter. Id.         As such, there is no
documentary evidence of this agreement.
       {¶8}   Moreover, Wajda had difficulty recalling the specifics of the agreed-
upon commission structure. (Tr. 53-55.) Wajda initially stated that he and Dugan
agreed that Wajda would be entitled to ten percent of the manufacturer’s suggested
retail price on new cars, and 30 percent of the gross profit on used cars. (Tr. 28.)
Upon cross-examination, Wajda conceded that he was mistaken, and that the
commission plan that he and Dugan agreed upon was for 25 percent of the gross
profit on new cars, less advertising, and 30 percent of the gross profit on used cars,
less $300. (Tr. 54-55; Defendant’s Exhibit 1B.) These terms were reflected in a
document titled “Payroll Change Notice.” (Defendant’s Exhibit 1B.) In the absence of
Wajda’s alleged written contract, this form is the only documentary evidence with any
reference to Wajda’s pay plan.
       {¶9}   Further, Joseph Stefanini (Stefanini), vice president of Montrose Auto
Group and vice president and part-owner of the Hermitage Montrose dealership,
testified that he would have had to give final approval on any proposed guarantee for
an incoming employee, and that Wajda had no such guarantee. (Tr. 95) In addition,
Stefanini explained that Price received a guarantee only because he was slated for
management, and that he would not authorize a guarantee for any person hired
strictly as a salesperson, as was the case with Wajda. (Tr. 93-94) Stefanini did
acknowledge that Dugan was given a fair degree of latitude in making hiring
decisions, and that Wajda was brought in on a better-than-standard commission
structure – in fact, Stefanini’s signature appears on the document authorizing this pay
plan. (Tr. 91-92; Defendant’s Exhibit 1B.)     Furthermore, the employee handbook
notes that “[i]t is the policy of the Montrose Auto Group to pay wages and provide
benefits which are competitive with those paid for similar jobs in our community and
industry.” (Plaintiff’s Exhibit 1.)   However, in referencing his company’s general
employment policies, Stefanini testified that employment was on an at-will basis,
stating: “[w]e have never ever given an employment contract.” (Tr. 97.)
                                                                                -4-


       {¶10} While the terms of Wajda’s employment remained in dispute, both
parties stipulated that Wajda began working for Montrose on August 15, 2007. (Tr.
106.) When questioned about Wajda’s job performance, Price testified that “[Wajda]
was aggressive.    * * * [H]e was a hard worker and seemed to be a very good
employee.    The sales just weren’t coming.” (Tr. 20.)       Dugan reasoned that the
employees he brought in from Youngstown and Warren were slower to establish a
clientele due, in part, to the physical distance from their previous customer base and
that, more generally, “business wasn’t very good.” (Tr. 26.) Wajda conceded that his
sales numbers were off from what they had been at Sweeney, but he, too, pointed to
the difficulty in establishing a new customer base, noting that the possibility of
diminished sales during this transitional period is precisely the reason for offering the
guarantee. (Tr. 44, 56.)
       {¶11} Wajda testified that, in September 2007, he began having issues with
his compensation at Montrose. (Tr. 30-33.) According to Wajda, he was not paid the
proper commission percentage on certain used vehicles. Id. Wajda claimed that he
immediately notified sales manager Allen Deal (Deal) of the problem, and that Deal
addressed the situation on at least two occasions, modifying those deals to reflect the
higher commission percentage. (Tr. 31.)       However, it soon became apparent to
Wajda that management would not honor his purported guarantee. (Tr. 31, 47.)
Wajda testified that when he approached Deal about the issue of his guarantee, Deal
informed Wajda that his sub-par sales record did not warrant the payment of any
guarantee. Id.     For his part, Deal did attest that he thought Wajda was
underperforming, but Deal maintained that Wajda never at any time came to him with
a complaint about not receiving a guarantee. (Tr. 66.) Furthermore, although the
employee handbook made clear that Wajda could address his grievance with any
member of management, he never brought the issue of his guarantee to any other
superiors. (Tr. 50-52.)     Wajda claimed this is because certain managers –
specifically, Dugan and Stefanini – were consistently unavailable. (Tr. 32, 50-52.)
                                                                                -5-


       {¶12} Deal testified that he confronted Wajda about his job performance in
early November, and it was then that Wajda revealed he was looking for employment
elsewhere. (Tr. 69-70.) After conferring with another member of the management
team, Deal decided to end Wajda’s employment with Montrose. (Tr. 71.)                 Per
company policy, Deal and another employee, Tom Bishop, conducted an exit
interview with Wajda. (Tr. 72-73.) A series of questions on the standardized, five-
page form centered on compensation. (Defendant’s Exhibit 3.)           Specifically, one
question asked whether the employee felt the pay was adequate. Id. Deal asserted
that he went over these questions with Wajda, and at no time did Wajda voice his
discontent with his payment package. (Tr. 72-74.)
       {¶13} In Wajda’s version of events, Deal questioned Wajda about whether he
was looking for a new job after hearing a rumor from another employee. (Tr. 55-56.)
When confronted, Wajda claimed that an individual named Jeff Zombar had
contacted him about an employment opportunity and that Wajda and this gentleman
“were just talking about the possibilities.” (Tr. 55.) Wajda maintained that, at the time
of his termination, he was ready, willing, and able to continue his employment with
Montrose through the fourth month of the alleged agreement. (Tr. 35.) Moreover,
Wajda asserted – and Montrose did not dispute – that during his tenure Wajda never
requested any time off or took a sick day, and that he even came in on his scheduled
days off, on occasion. (Tr. 34, 57.)
       {¶14} The parties stipulated that the date of Wajda’s termination was
November 7, 2007. (Tr. 106.) They further stipulated that, for the entire duration of
his employment, Wajda was paid the sum of $6,713.62. (Tr. 35.)
       {¶15} On January 18, 2008, Wajda filed suit against Montrose, alleging
breach of contract. (Complaint.) Wajda sought to recover $11,286.38 from his former
employer – the balance Wajda believed he was owed from his four-month, $4,500-
per-month guarantee. Id. Montrose answered, denying all of Wajda’s allegations.
(Answer.)
                                                                                  -6-


         {¶16} The matter was tried before a magistrate on June 15, 2009.
(Magistrate’s Decision.) In a decision filed on November 16, 2009, the magistrate
found in Wajda’s favor and recommended judgment against Montrose in the sum of
$11,286.38, together with interest and costs. Id. In determining Wajda’s evidence “to
be the more credible,” the magistrate’s decision included the finding that “it is unlikely
that [Wajda] would leave his current employer unless his prospective employer
guaranteed him compensation in an amount greater than that which he had been
receiving, i.e., ‘$4,500 p/m for 4 months,’ * * *.” Id.
         {¶17} The lower court’s docket sheet evidences that, on December 1, 2009,
Montrose filed objections to the magistrate’s decision. (Docket Sheet.) However,
those objections are inexplicably missing from the record.        Nonetheless, the trial
court adopted the magistrate’s decision and entered judgment on December 14,
2009, finding that “no written objections have been filed and that no error of law or
other defect appears on the face of the Magistrate’s Decision.” (Judgment Entry.)
         {¶18} On January 13, 2010, Montrose filed this timely appeal. (Notice of
Appeal.) On March 2, 2010, this Court granted an extension for Montrose to file its
initial brief, which Montrose subsequently filed on March 26, 2010. (Brief of Appellant
at 3.)    On April 14, 2010, Wajda likewise filed a brief with this Court. (Brief of
Appellee.) In addition to addressing the substance of Montrose’s assignments of
error, Wajda asserted that Montrose’s arguments on appeal were procedurally
defective pursuant to Civil Rule 53(E)(3), in that Montrose failed to object to the
magistrate’s decision in a timely manner. (Brief of Appellee at 3.)           In response,
Montrose filed a reply brief on April 26, 2010. (Reply Brief of Appellant.)
         {¶19} On appeal, Montrose presents two assignments of error for review:
         {¶20} “THE TRIAL COURT’S DAMAGE AWARD ON MR. WAJDA’S WAGE
CLAIM WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND MUST BE
REVERSED.”
                                                                                -7-


       {¶21} “THE TRIAL COURT’S DAMAGE AWARD ON MR. WAJDA’S WAGE
CLAIM WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST
BE REVERSED.”
       {¶22} Both assignments of error require the reviewing court to consider the
evidence in relation to the damage award. This Court has previously held that the
same standard of review applies to both challenges. See Lydic v. Earnest, 7th Dist.
No. 02 CA 125, 2004-Ohio-3194, at ¶20. As such, Montrose’s assignments of error
will be analyzed together.
       {¶23} Before reaching the substance of Montrose’s arguments, however, this
Court must address Wajda’s assertion that the basis of Montrose’s entire appeal is
improper, pursuant to Civ.R. 53(E)(3).
       {¶24} While Wajda’s characterization of the law on this matter is essentially
accurate, Wajda neglects the fact that Civ.R. 53 was amended effective July 1, 2006,
and that Civ.R. 53(E)(3) was replaced by Civ.R. 53(D)(3)(b)(iv). The two provisions,
however, are fundamentally the same. The revised rule states: “Waiver of right to
assign adoption by court as error on appeal. Except for a claim of plain error, a party
shall not assign as error on appeal the court’s adoption of any factual finding or legal
conclusion, whether or not specifically designated as a finding of fact or conclusion of
law under Civ.R. 53 (D)(3)(a)(ii), unless the party has objected to that finding or
conclusion as required by Civ.R. 53(D)(3)(b).”
       {¶25} Civ.R. 53(D)(3)(b)(i) establishes a timeframe for the filing of such
objections: “Time for filing. A party may file written objections to a magistrate’s
decision within fourteen days of the filing of the decision, whether or not the court has
adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i).   If any party timely files objections, any other party may also file
objections not later than ten days after the first objections are filed. If a party makes
a timely request for findings of fact and conclusions of law, the time for filing
objections begins to run when the magistrate files a decision that includes findings of
fact and conclusions of law.” (Emphasis added.)
                                                                                  -8-


       {¶26} The magistrate’s decision was filed on November 16, 2009, and copies
of the decision were sent to the parties by regular mail that same day. The record
indicates that Montrose filed objections to the magistrate’s decision on December 1,
2009 – fifteen days after the filing of the decision. Therefore, by rule, Montrose is not
permitted to assign as error on appeal the court’s adoption of any finding of fact or
conclusion of law unless the party timely objected to that finding. State ex rel Booher
v. Honda of Am. Mfg., Inc. (2000), 88 Ohio St.3d 52, 53, 723 N.E.2d 571.
       {¶27} The Ohio Supreme Court has firmly adhered to these procedural
mandates, as reiterated in a recent ruling in which the court dismissed an appeal
from a magistrate’s decision and affirmed the lower court’s judgment with a terse
explanation: “[a]ppellant’s arguments derive directly from the conclusions of law
provided in the magistrate’s decision. Appellant, however, did not object to those
conclusions as Civ.R. 53(D)(3)(b) requires. Thus, * * * we can proceed no further.”
State ex rel. Findlay Industries v. Indus. Comm. of Ohio, 121 Ohio St.3d 517, 2009-
Ohio-1674, 905 N.E.2d 1202, at ¶3. See, also, Mahoning Natl. v. Wilhelm, 7th Dist.
Nos. 04 MA 248, 04 MA 249, 2006-Ohio-6132, at ¶7 (holding that a party shall not
assign as error on appeal the court’s adoption of any magistrate’s finding of fact or
conclusion of law unless the party has objected to that finding or conclusion); Miller v.
Smith, 2d Dist. No. 19958, 2004-Ohio-1310, at ¶22 (holding that the assigned error is
waived by the failure to file timely objections to the magistrate’s decision with respect
to that error).
       {¶28} For its part, Montrose invokes Civil Rule 6(E) in support of its assertion
that it had three additional days to file its objections to the magistrate’s decision since
the decision was mailed to it. Civ.R. 6(E) provides, in part: “Whenever a party has
the right or is required to do some act or take some proceedings within a prescribed
period after the service of a notice or other paper upon him and the notice or paper is
served upon him by mail, three days shall be added to the prescribed period.” Thus,
Montrose contends that its objections were in fact timely. And by failing to address
the issues allegedly preserved by its objections, the trial court’s judgment entry was
                                                                                              -9-


improper.     Consequently, Montrose believes it “was deprived its opportunity to
contest the facts, introduce new evidence or argue the legal conclusions adopted by
the Court.” (Reply Brief of Appellant.)
        {¶29} However, as this court has observed, “[t]he Ohio Supreme Court has
held that Civ.R. 6(E), known as the three-day mail rule, does not extend the time for
filing objections to a magistrate’s decision. Duganitz v. Ohio Adult Parole Auth.
(2001), 92 Ohio St.3d 556, 557, 751 N.E.2d 1058, citing Pulfer v. Pulfer (1996), 110
Ohio App.3d 90, 92-93, 673 N.E.2d 656. The Supreme Court stated that Civ.R. 53
requires written objections to a magistrate’s decision to be filed within 14 days of the
filing of the magistrate’s decision, not within 14 days of the serving of the decision.
Id.” Thus, despite Civ.R. 6(E), the objections in this case were untimely filed.1
        {¶30} Despite Montrose’s failure to file timely objections to the magistrate’s
decision and, therefore, preserve those issues for appeal, the substantive merits of
Montrose’s assigned errors would nevertheless fail. As noted, this Court has held
that the standard of review for appeals in civil cases challenging manifest weight or
sufficiency of the evidence is the same: “[j]udgments supported by some competent,
credible evidence going to all the essential elements of the case will not be reversed
by a reviewing court * * * .” Lydic at ¶20, quoting C.E. Morris Co. v. Foley Constr. Co.
(1978), 54 Ohio St.2d 279, 280, 376 N.E.2d 578. Matters of law, of course, are
reviewed de novo by this Court. Ohio Bell Tel. Co. v. Pub. Util. Comm. (1992), 64
Ohio St.3d 145, 147, 593 N.E.2d 286. However, the appellate court must bear in
mind the trier of fact’s superior, first-hand perspective in weighing the evidence and
judging the demeanor and credibility of witnesses. Seasons Coal Co. v. Cleveland
(1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273.
        {¶31} Wajda framed his action as a breach of contract claim. Wajda asserted
that the parties formed a contract when Montrose made an offer of employment and
Wajda accepted the position of salesman. In Wajda’s estimation, the guarantee of

1. The magistrate’s decision in this case cautioned the parties that “[p]ursuant to Civil Rule 53(D)(3),
the parties shall have fourteen (14) days from the date of the filing of this Decision to file written
Objections with the Clerk of Court’s Office.” (Emphasis added.) (Docket 16.)
                                                                               - 10 -


$4,500 per month for four months was an explicit contractual term, and the failure to
pay this amount constituted a breach. The complaint specifically alleged:
       {¶32} “1. On or about 8/16/07, pursuant to Defendant’s offer of employment
made in Boardman Township, Mahoning County, Ohio in 7/07, the parties entered
into a certain employment contract providing for Plaintiff’s employment as a salesman
for the Defendant.
       {¶33} “2. Among its terms, the contract provided for Defendant’s payment to
Plaintiff of an amount no less than the sum of $4,500 per month, from month to
month, for four consecutive months.
       {¶34} “3. Plaintiff substantially performed per the terms and conditions of the
parties’ contract.
       {¶35} “4. Defendant breached the contract by paying Plaintiff only the sum of
$6,713.62 throughout that stipulated four-months’ [sic] period of time.” (Docket 1.)
Montrose, in turn, denied the existence of any contract, maintaining that Wajda was
employed on an at-will basis.
       {¶36} A contract is generally defined as a promise, or a set of promises,
actionable upon breach. Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770
N.E.2d 58, at ¶16. “To prove the existence of a contract, a party must establish the
essential elements of a contract: an offer, an acceptance, a meeting of the minds, an
exchange of consideration, and certainty as to the essential terms of the contract.”
Schambach v. Afford-A-Pool & Spa, 7th Dist. No. 08 BE 15, 2009-Ohio-6809, at ¶8,
quoting Juhasz v. Costanzo (2001), 144 Ohio App.3d 756, 762, 761 N.E.2d 679.
       {¶37} It is well established that there are three categories of contracts:
express, implied in fact, and implied in law. Legros v. Tarr (1989), 44 Ohio St.3d 1, 6,
540 N.E.2d 257. Further, contracts may be written or oral. Ayad v. Radio One, Inc.,
8th Dist. No. 88031, 2007-Ohio-2493, at ¶24, citing Eckliff v. Walters, 168 Ohio
App.3d 727, 2006-Ohio-4817, 861 N.E.2d 843, at ¶22.
       {¶38} The magistrate’s decision concluded (by implication) that some form of
agreement existed between the parties. However, the magistrate, operating within
                                                                                 - 11 -


his discretion, chose not to elaborate on his reasoning aside from stating a single
finding, thereby leaving in question the theory under which he determined a contract
was formed. As such, it is necessary to review each category to establish whether
“there is some competent, credible evidence going to all the essential elements of the
case.” Lydic at ¶20.
       {¶39} The record does not demonstrate the existence of any written contract.
No documents purporting to be a contract were introduced into evidence by Wajda.
In his testimony, Wajda alleged that he and Dugan executed a written contract, but
that an unidentified person ostensibly took it from his desk just prior to his dismissal.
(Tr. 41-42.) While Dugan said that he generally put the specifics of any guarantee in
writing, he did not remember signing any documents relating to a guarantee for
Wajda. (Depo. 5, 13.) Without more, it seems unlikely that Wajda’s bare allegation
could prove the existence of a written agreement.           However, despite Wajda’s
testimony, his complaint does not actually assert that he had a written contract, so
the absence of any documentary evidence to that effect is not fatal to his claim.
       {¶40} Montrose seems to suggest that a written contract may have existed,
stating in its brief: “[w]hat is clear from the trial transcript is that Mr. Wajda did not
prove that he had any contract other than the written payroll change notice identified
by Mr. Joe Stefanini.” (Brief of Appellant at 6.) The “Payroll Change Notice” form
indicated that Wajda was to receive a higher-than-standard commission percentage,
but made no mention of any guarantee. (Defendant’s Exhibit 1B.) Handwriting from
Dugan and at least one other person appeared on the document, along with
Stefanini’s signature at the bottom. In Stefanini’s testimony, however, he resolutely
declared that all employees at Montrose were hired on an at-will basis, and that his
company has never offered an employment contract. (Tr. 97.) If this testimony is to
be accepted, it seems highly unlikely that Stefanini would have personally signed off
on a document purporting to be an employment contract. Because neither Wajda nor
Stefanini believed the payroll form to represent a contract, there was clearly no
meeting of the minds. Thus, it appears neither party provided evidence of a binding
                                                                                   - 12 -


written contract.   Therefore, if there was a contract, it was most likely an oral
agreement.
       {¶41} While the Ohio Supreme Court deems it “preferable” to have a contract
memorialized in writing, it has held that an oral agreement “may be enforceable if
there is sufficient particularity to form a binding contract.” Kostelnik at ¶16.
       {¶42} As a general rule, however, employment under an oral agreement is
presumptively at will. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104,
19 OBR 261, 438 N.E.2d 150.             Either party may terminate the employment
relationship at any time for any reason not contrary to law. Mers at 104, 19 OBR 261,
438 N.E.2d 150. In Mers, the Ohio Supreme Court recognized that the terms of an
at-will employment relationship may be altered by implied or express contractual
obligations. Mers at 104, 19 OBR 261, 438 N.E.2d 150. Here, although Montrose’s
policy handbook disclaimed that all employment was at will, Wajda maintained that
his agreement with Dugan created an express contractual obligation that modified his
employment status.
       {¶43} To prove a breach of contract claim for either an express or an implied
contract, the plaintiff must demonstrate: (1) the existence of a contract; (2)
performance by the plaintiff; (3) breach by the defendant; and (4) damage or loss to
the plaintiff. Gruger v. Diversified Air System, Inc., 7th Dist. No. 07 MA 52, 2008-
Ohio-3403, at ¶42, citing Doner v. Snapp (1994), 98 Ohio App.3d 597, 600, 649
N.E.2d 42.      Demonstrating the existence of both express and implied-in-fact
contracts requires proving every element of a contract. Dunn v. Bruzzese, 172 Ohio
App.3d 320, 2007-Ohio-3500, 874 N.E.2d 1221, at ¶28, citing Lucas v. Costantini
(1983), 13 Ohio App.3d 367, 368, 469 N.E.2d 927. What distinguishes express
contracts from implied-in-fact contracts is the form of proof that is necessary to
establish each contractual element. Dunn at ¶28, citing Penwell v. Amherst Hosp.
(1992), 84 Ohio App.3d 16, 21, 616 N.E.2d 254.
       {¶44} In express contracts, assent to the terms of the contract is actually
articulated in the form of an offer and an acceptance. Dunn at ¶28, citing Lucas at
                                                                               - 13 -


368, 469 N.E.2d 927. On the other hand, in implied-in-fact contracts, “the parties’
meeting of the minds is shown by the surrounding circumstances, including the
conduct and declarations of the parties, that make it inferable that the contract exists
as a matter of tacit understanding.” Dunn at ¶28, quoting Stepp v. Freeman (1997),
119 Ohio App.3d 68, 74, 694 N.E.2d 510 (Citation omitted.). Therefore, to establish
a contract implied in fact, “a plaintiff must demonstrate that the circumstances
surrounding the parties’ transaction make it reasonably certain that an agreement
was intended.” Dunn at ¶28, quoting Stepp at 74, 694 N.E.2d 510, citing Lucas at
368, 469 N.E.2d 927.
       {¶45} Wajda’s complaint seems to posit that a definite offer of employment
was made, to which he clearly accepted. Wajda’s testimony recounted the efforts of
Dugan and Price to recruit him to Montrose. (Tr. 25-28.) Discussions extended over
several weeks, during which the focus was primarily on compensation. Id. Wajda
contended that he and Dugan eventually had a meeting in which the two negotiated a
guaranteed starting rate of $4,500 per month for the first four months, with an
increased commission percentage. (Tr. 28.) Wajda’s position was essentially that
this constituted an offer, and that he accepted it.
       {¶46} Dugan confirmed that he actively sought out Wajda for employment at
Montrose. (Depo. 4-5.)       Dugan’s testimony, however, was plagued by vague
recollections. He repeatedly stated that Wajda had a guarantee, but Dugan could not
recall any specifics of the agreement. (Depo. 5-8.) Further, he thought Price actually
handled the negotiations – a statement both Wajda and Price refuted. (Depo. at 5-6;
Tr. 14, 28.)
       {¶47} Still, Dugan testified that he was charged with building a sales team,
and that he routinely used guarantees as a method for securing desirable
employees. (Depo. at 4-5, 10-11.) The guarantees Dugan would offer ranged from
$4,000 to $8,000 for three to six months. (Depo. at 7-8.) Dugan considered Wajda to
be an asset, and clearly evidenced his intention to persuade Wajda to leave his
employment at Sweeney to work for Montrose. (Depo. at 4-5, 25.) The collective
                                                                              - 14 -


testimony revealed that Dugan operated with very little oversight from upper
management, and Dugan claimed that no one ever questioned any of his hiring
decisions during his brief tenure at Montrose. (Depo. at 20-21; Tr. 91-92.)            In
addition, it appeared that no one other than Dugan and Wajda would have
knowledge of the final negotiation wherein the agreement was supposedly reached.
      {¶48} Furthermore, as the magistrate noted, it was unlikely that Wajda would
leave Sweeney without an offer that was comparable or better from Montrose.
Multiple persons testified to Wajda’s success at Sweeney, and Wajda related his
reluctance to jeopardize the financial stability of his family without the benefit of a
preliminary guarantee. (Depo. at 4; Tr. 28.)
      {¶49} Although Dugan’s inability to recall any specifics of the offer is
somewhat problematic, the law is clear that, in oral contracts, mutual assent may be
manifested by means other than an explicit offer and acceptance. The terms of an
oral contract may be determined from the “words, deeds, acts, and silence of the
parties.” Kostelnik at ¶16. “[S]eldom, if ever, does the evidence in proof of an oral
contract present its terms in the exact words of offer and acceptance found in formal
written contracts. And no such precision is required.” Rutledge v. Hoffman (1947), 81
Ohio App. 85, 86, 36 O.O. 405, 75 N.E.2d 608.
      {¶50} Accordingly, there was enough evidence to support the magistrate’s
decision that an oral contract existed. Although there was testimony rebutting the
allegation that Wajda was offered a guarantee, none of it came from any person that
actually participated in recruiting Wajda. Those individuals, therefore, would not have
had firsthand knowledge of the negotiations. Dugan’s testimony, though imprecise,
made clear that he intended to bring Wajda and any other worthy candidate to
Montrose on a guarantee of at least $4,000 per month for no less than three months.
Dugan even made offers as high as $8,000 per month for six months. And no one
from Montrose disputes Dugan’s ability to make deals and hire employees on the
company’s behalf. Thus, Wajda’s assertion that he was offered $4,500 per month for
four months is well within reason, and evidences a meeting of the minds between the
                                                                             - 15 -


parties. Further, there was adequate consideration: the guarantee was to be paid for
Wajda leaving his employment at Sweeney and working for Montrose. And, believing
Wajda’s testimony, the essential terms were definite and certain. Allowing deference
to the magistrate’s credibility judgments, there is certainly some competent, credible
evidence going to the existence of either an express or implied oral agreement.
       {¶51} Having established that a contract existed, it is unnecessary to consider
whether Montrose would be bound under a theory of implied-in-law contract or
promissory estoppel. Thus, we shall examine the other elements of Wajda’s breach
of contract claim.
       {¶52} Wajda had been performing per the terms of his agreement with Dugan
up until his termination from Montrose. Wajda never missed a scheduled day of
work. (Tr. 57.) Price attested to Wajda’s work ethic and initiative. (Tr. 20.) Wajda
had been making sales, although those numbers were admittedly below his
performance at Sweeney. (Tr. 44, 56.) However, Wajda’s contract with Dugan did
not include any provision for a minimum sales quota. In fact, the agreement was
made with the expectation that Wajda’s sales would be off his previous mark. (Tr.
26.) The guarantee essentially offset any lag in sales while Wajda developed a
customer base. Moreover, there was testimony that sales were down throughout the
dealership. (Tr. 26.)
       {¶53} Montrose contends that Wajda was not entitled to the entire judgment
since he did not work for the entire four-month period. According to Montrose, the
lower court’s judgment implies that “Wajda could have worked one day and then quit
and nevertheless been entitled to $18,000.” (Brief of Appellant at 5.) This is an
overstatement.       Wajda, of course, was still required to substantially perform.
Montrose’s decision to prematurely terminate Wajda’s employment cannot be held
against him. Although another individual had contacted Wajda about an employment
opportunity, Wajda testified that he was still ready, willing, and able to fulfill his
contractual obligation. (Tr. 35.) And as this court has held, a party who prevents
performance on the part of the adverse party “cannot take advantage of such non-
                                                                                - 16 -


compliance or non-performance by the party obligated to perform under the contract.”
Gary Crim, Inc. v. Rios (1996), 114 Ohio App.3d 433, 436, 683 N.E.2d 378, citing
Suter v. Farmers’ Fertilizer Co. (1919), 100 Ohio St. 403, 126 N.E. 304. Therefore,
Wajda substantially performed.
      {¶54} The breach and resulting damage are self-evident: the parties
stipulated that Wajda was paid $6,713.62; full payment of the guarantee would have
been $18,000; thus, Montrose failed to pay Wajda $11,286.38. Since a contract
existed for the guaranteed amount, the failure to pay that amount constituted a
breach. Obviously, Wajda would be damaged by not receiving the balance of his
guarantee.
      {¶55} It is well established that a party proving breach of contract is entitled to
the benefit of his or her bargain. Schambach v. Afford-A-Pool & Spa, 7th Dist. No. 08
BE 15, 2009-Ohio-6809, at ¶10, citing Garofalo v. Chicago Title Ins. Co. (1995), 104
Ohio App.3d 95, 108, 661 N.E.2d 218. In a breach of contract action, the award of
money damages is designed to place an aggrieved party in the same position that he
or she would have been had the contract not been breached. Schambach at ¶10,
citing World Metals, Inc. v. AGA Gas, Inc. (2001), 142 Ohio App.3d 283, 287, 755
N.E.2d 434.    Had Montrose not breached, Wajda would have received the full
amount stipulated in the guarantee. Further, in order to set aside the trial court’s
damage award as against the manifest weight of the evidence, a reviewing court
must determine that the award is “so disproportionate as to shock reasonable
sensibilities.” Lydic v. Earnest, 7th Dist. No. 02 CA 125, 2004-Ohio-3194, at ¶37,
quoting Bailey v. Allberry (1993), 88 Ohio App.3d 432, 437, 624 N.E.2d 279. Rather
than being disproportionate at all, the magistrate’s damage award precisely
conformed to the amount Wajda was contractually due.
      {¶56} While the record contains inconsistent and contradictory testimony, it
cannot be said that this is the exceptional case where the evidence weighs heavily
against the judgment. While there was evidence to the contrary, there was at least
some competent, credible evidence going to all the essential elements of Wajda’s
                                                                                 - 17 -


claim.     Giving due deference to the trial court’s ability to make credibility
determinations that cannot be gleaned from the written record, we cannot find that
the trier of fact clearly lost its way.   As such, the lower court’s adoption of the
magistrate’s decision was based on sufficient evidence and does not go against the
manifest weight of the evidence.
         {¶57} Accordingly, Montrose’s assignments of error are without merit.
         {¶58} The judgment of the trial court is hereby affirmed.


Waite, J., concurs.

DeGenaro, J., concurs.
