[Cite as Smith Clinic v. Savage, 2013-Ohio-748.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




THE FREDERICK C. SMITH
CLINIC, INC.,

        PLAINTIFF-APPELLEE,                                 CASE NO. 9-12-40

        v.

BRENT SAVAGE, M.D.,                                         OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Marion County Common Pleas Court
                           Trial Court No. 09-CV-0995

                                      Judgment Affirmed

                             Date of Decision:     March 4, 2013




APPEARANCES:

        Jeffrey A. Burkam for Appellant

        Walter F. Ehrnfelt and Luke F McConville for Appellee
Case No. 9-12-40


PRESTON, P.J.

       {¶1} Defendant-appellant, Dr. Brent Savage, appeals the Marion County

Court of Common Pleas’ judgment finding that Dr. Savage owed plaintiff-

appellee, the Frederick C. Smith Clinic, $56,826 pursuant to his employment

contract. Dr. Savage argues the trial court erred when it failed to find that Smith

Clinic breached the terms of the contract, that the trial court erred in finding that

Dr. Savage’s accounts receivable had vested with Smith Clinic, and that the trial

court erred in failing to find that Smith Clinic must apply any payments received

after Dr. Savage terminated his employment to the amount he allegedly owed

Smith Clinic. For the reasons that follow, we affirm.

       {¶2} The present case stems from an employment contract between Smith

Clinic and Dr. Savage. Dr. Savage began his employment with Smith Clinic in

July 2006. (P. Ex. 1). At that time, he signed an employment contract with Smith

Clinic guaranteeing him an annual salary of $225,000 regardless of the amount of

his collections or billing. (Id.); (Vol. I Tr. at 34). Dr. Savage’s initial contract

with Smith Clinic terminated on January 31, 2008. (P. Ex. 1).

       {¶3} Dr. Savage signed a second employment contract with Smith Clinic

for a term of employment from February 1, 2008 through January 31, 2009. (P.

Ex. 3).   The second contract provided Dr. Savage with an annual salary of

$225,000, but also contained a year-end bonus provision. (Id.). According to the


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contract, the year-end bonus would be calculated based on the accounts Smith

Clinic collected as a result of Dr. Savage’s medical services, minus Dr. Savage’s

share of Smith Clinic’s expenses, minus the annual compensation Smith Clinic

had already paid him. (Id.). If the result of the calculation was a positive amount,

then Dr. Savage would be eligible for a bonus. (Id.). The contract further stated,

“[i]f the result of this calculation is a negative amount, then such amount shall be

treated as a cash advance by Corporation to Employee which shall be repaid

immediately by Employee or offset against Employee’s future salary until fully

repaid.” (Id.).

       {¶4} In January 2009, Smith Clinic alleged Dr. Savage had a deficit

amounting to $67,292 according to the year-end bonus calculation. (Vol. I Tr. at

66, 70); (P. Ex. 5). Smith Clinic sought to reduce Dr. Savage’s future salary to

repay the deficit. (Vol. I Tr. at 66, 70). Dr. Savage disputed that he was required

to repay the deficit and did not want his future salary reduced. (Vol. II Tr. at 281).

At the time the dispute arose, Dr. Savage had not yet signed a third employment

contract with Smith Clinic to begin after his second contract terminated on January

31, 2009. (Id. at 322).

       {¶5} During the following months, the parties continued to negotiate Dr.

Savage’s employment contract for the term beginning February 1, 2009,

specifically the issue of his alleged deficit. (Vol. I Tr. at 73). Negotiations


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continued until May 2009 when Smith Clinic withheld Dr. Savage’s salary and

applied the amount to his alleged deficit. (Id. at 67). Dr. Savage subsequently

terminated his employment with Smith Clinic. (Id. at 67); (Vol. II Tr. at 245).

        {¶6} On November 4, 2009, Smith Clinic filed a complaint against Dr.

Savage alleging he breached his employment contract, was unjustly enriched, and

had wrongfully retained possession of funds. (Doc. No. 1). Smith Clinic sought

damages in excess of $25,000. (Id.).

        {¶7} On April 19, 2010, Dr. Savage filed his answer, denying Smith

Clinic’s allegations. (Doc. No. 6). Dr. Savage also asserted a counterclaim,

alleging Smith Clinic had breached its contract and verbal agreement with him,

was unjustly enriched as a result of his employment, had converted funds that

rightfully belonged to him, and that Smith Clinic was estopped from recovering

damages. (Id.). Smith Clinic filed its reply on June 24, 2010. (Doc. No. 9).

        {¶8} The matter proceeded to a bench trial. (Doc. No. 27). On January 31,

2012, the trial court found that Dr. Savage owed Smith Clinic $58,426.1 (Id.).

The trial court further found that based on the employment contract, Smith Clinic

owned the rights to the amounts collected for professional services rendered by all

of its physicians, including Dr. Savage. (Id.). The trial court found that Dr.

Savage expressly declined to participate in Smith Clinic’s retirement plan, so any


1
 The parties stipulated that, based on Smith Clinic’s records, Dr. Savage had a deficit of $58,426.
However, Dr. Savage contended that the records were unreliable.

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amounts Dr. Savage believed Smith Clinic owed him from the retirement plan was

the result of an accounting error. (Id.). The trial court stated that it could not

conclude that Dr. Savage was entitled to any future money collected from Bucyrus

Hospital because the contract for Dr. Savage’s services was between Smith Clinic

and Bucyrus Hospital. (Id.). The trial court also stated that Dr. Savage was not

entitled to uncollected accounts from Marion General Health Center because Dr.

Savage’s compensation was based on money actually collected, not accounts

receivable.   (Id.).   The trial court found that Dr. Savage was entitled to

reimbursement for $1,600 worth of expenses related to his board certification

testing. (Id.). The trial court concluded that Dr. Savage owed Smith Clinic a total

of $56,826. (Id.).

       {¶9} On February 13, 2012, Smith Clinic filed a motion requesting that the

trial court grant it prejudgment interest pursuant to R.C. 1353.03(A). (Doc. No.

28). On March 22, 2012, Dr. Savage filed a motion in opposition to Smith

Clinic’s motion for prejudgment interest. (Doc. No. 35). On July 9, 2012, the trial

court granted Smith Clinic’s motion for prejudgment interest. (Doc. No. 40). The

trial court calculated the total interest as $7,159.76, for a total final judgment

amount of $63,985.76 in favor of Smith Clinic. (Id.).




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        {¶10} On July 12, 2012, Dr. Savage filed a notice of appeal.2 (Doc. No.

41). Dr. Savage now raises three assignments of error for our review.

                                 Assignment of Error No. I

        The Court erred as a matter of law when it failed to find that
        Plaintiff, Smith Clinic, breached the terms of its agreement with
        Dr. Savage.

        {¶11} In his first assignment of error, Dr. Savage argues that after the

contract expired on January 31, 2009, Smith Clinic and he continued their

employment relationship even though the arrangement was contrary to the

language of the contract. Dr. Savage contends that Smith Clinic breached its

contract with him by failing to fully collect on accounts receivable that were the

result of services he performed as a surgeon. Dr. Savage also argues that Smith

Clinic breached the contract by failing to pay him in May 2009. Dr. Savage

contends that section 2 of the contract permitted him to address his alleged

shortfall by either setting up a payment plan or paying off the amount in full. Dr.

Savage argues that Smith Clinic could not unilaterally apply his salary to the

shortfall.

        {¶12} This case calls for an interpretation of the contract between the

parties. “Contract interpretation is a matter of law, and questions of law are

subject to de novo review on appeal.” St. Marys v. Auglaize Cty. Bd. of Commrs.,


2
  Smith Clinic had previously filed a notice of appeal on February 29, 2012. (Doc. No. 30). This Court
dismissed the appeal due to the pending motions regarding prejudgment interest.

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115 Ohio St.3d 387, 2007-Ohio-5026, ¶ 38, citing Nationwide Mut. Fire Ins. Co.

v. Guman Bros. Farm, 73 Ohio St.3d 107, 108 (1995). “Absent ambiguity in the

language of the contract, the parties’ intent must be determined from the plain

language of the document.” Huntington Natl. Bank v. A&J Plumbing, Inc., 11th

Dist. No. 2011-G-3021, 2012-Ohio-526, ¶ 26, citing J.B.H. Properties, Inc. v.

N.E.S. Corp., 11th Dist. No. 2007-L-024, 2007-Ohio-7116, ¶ 10. However, when

the contract is ambiguous, it will be strictly construed against the drafter. Owusu

v. Hope Cancer Ctr. of Northwest Ohio, Inc., 3d Dist. No. 1-10-81, 2011-Ohio-

4466, ¶ 35, citing McKay Mach. Co. v. Rodman, 11 Ohio St.2d 77, 80 (1967).

                                1. Expired Contract

       {¶13} Dr. Savage first argues that Smith Clinic breached the contract by

continuing its employment relationship with him after the original contract expired

on January 31, 2009.       When an employee’s services are continued without

objection after an employment contract for a definite period of time has expired,

“the inference is that the parties have assented to another contract for a term of the

same length with the same salary and conditions of service, following the analogy

of a similar rule in regard to leases.” Meek v. Solze, 6th Dist. No. OT-05-055,

2006-Ohio-6633, ¶ 20, citing 1 Williston, Contracts, Rev.Ed. Section 90 and Kelly

v. Carthage Wheel Co., 62 Ohio St. 598 (1900).




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       {¶14} In the present case, David Miller, Smith Clinic’s Executive Director,

testified that there was no objection to Dr. Savage continuing his employment

according to his expired contract during their negotiations. (Vol. I Tr. at 25, 63).

Miller testified, “what we indicated is that we would continue the contract that had

expired January 31, 2009 going forward, we would just continue that as if it had

not expired.” (Id.). Miller further testified, “[w]e indicated we wanted him to

stay, he indicated he wanted to stay, we knew we needed to work out how we were

gonna handle this deficit, but we would continue to move forward and he

continued to see patients and we continued to pay him his draw.”                (Id.).

According to Miller, “[w]e were operating as if the contract that had expired on

January 31, 2009 was ongoing until we could replace it with a document that we

all agreed to and signed. We were in discussion about how to handle the various

issues, most significantly his deficit from the preceding year.” (Vol. II Tr. at 334).

Dr. Savage testified, “I believe my responsibility was to continue to do the work

that I was * * * basically was in my job description, continue to do everything I

had before * * *. Again with the hopes that we could come up with a contract.”

(Id. at 322).

       {¶15} We cannot find that Smith Clinic breached its contract with Dr.

Savage by continuing their employment relationship after the contract expired.

Both parties testified that they continued to fulfill their responsibilities under the


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prior contract while they worked towards resolving the deficit issue. We cannot

find any evidence that either party objected to this arrangement, consequently, this

Court can infer that the parties intended to extend the previous contract.

                                   2. Collections

       {¶16} Dr. Savage next argues Smith Clinic breached the contract by failing

to fully collect on accounts receivable stemming from his work as a surgeon. In

particular, Dr. Savage contends that he worked at Bucyrus Hospital for a stipend

of $2,000 per month, but Smith Clinic failed to collect any payments from

Bucyrus Hospital from February 2008 until the end of his employment. Dr.

Savage also argues that he provided services to Marion General Hospital, but

Smith Clinic did not receive any payments for those services either. Dr. Savage

further contends that Smith Clinic has failed to apply for a significant portion of

his stipend in Bucyrus Hospital’s bankruptcy proceedings. Dr. Savage argues that

he is entitled to money generated from the bankruptcy proceedings and from

Smith Clinic’s lawsuit against Marion General Hospital, which Dr. Savage alleges

was filed after he left his employment with Smith Clinic.

       {¶17} Miller testified that Bucyrus Hospital made two payments in 2008,

one payment for $2,000 and the second for $3,000. (Trial Vol. I Tr. at 55). Miller

testified that, “from the outset Bucyrus was not a prompt payor to say the least.

And so we were continuously contacting Mr. Klein and asking him where were we


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with being paid for the services.” (Id.). Miller further stated, “[o]ur accounting

department would have billed Bucyrus for the accounts and they would have also

asked the people in their accounting department about payment. In addition when

they weren’t paying I made a number of phone calls to Mr. Klein * * *.” (Id. at

56). Miller testified that Bucyrus Hospital filed for bankruptcy and Smith Clinic

filed a claim for $19,000. (Id. at 57-58). Miller testified that Smith Clinic made

the claim for $19,000, even though Bucyrus Hospital owed it a larger amount,

“based on conversations with Bucyrus Hospital, what they said they would and

wouldn’t pay.” (Id. at 59). Miller testified that, “[g]iven the known financial

status of Bucyrus I didn’t think it was worthwhile to spend money to pursue a suit

against them.” (Id. at 107).

       {¶18} Miller testified that Marion General Hospital’s program provided

services for individuals who were uninsured and did not have the means to pay,

and that Marion General “would pay specialists a fixed rate at the Medicare

allowable for providing services to those patients * * *.” (Id. at 138). Miller

testified, “[w]e billed for claims just as we would billing for Medicare or Medicaid

except instead of sending them to Medicare or Medicaid we sent them to the

hospital who adjudicated them * * *.” (Vol. II Tr. at 343-344). Miller also

testified regarding Marion General Hospital, “[t]hey ran quite a bit behind in their

processing of claims, there was always a pretty lengthy lag in terms of them timely


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turning around the claims for payment, and then they quit making payments into

the program on behalf of all the physicians.” (Vol. I Tr. at 139). Miller testified

that Marion General Hospital stopped paying claims for any services provided on

October 1, 2008 and after. (Id. at 140).

       {¶19} After reviewing Dr. Savage’s employment contract with Smith Clinic

and the relevant testimony, this Court cannot find that Smith Clinic breached the

contract by failing to collect accounts receivable.     The contract between Dr.

Savage and Smith Clinic does not contain any provisions requiring Smith Clinic to

take specific steps in its collection efforts. (P. Ex. 3); (D. Ex. 1). Furthermore,

this Court cannot find that Smith Clinic’s actions in this case, which were sending

out bills, following up with phone calls, and eventually filing a claim in

bankruptcy court against Bucyrus Hospital, were unreasonable.           This Court

declines to make a business judgment for Smith Clinic regarding whether

additional measures should be taken when pursuing accounts receivable.

                              3. Withholding Salary

       {¶20} Dr. Savage also argues Smith Clinic breached the contract by

unilaterally deciding to apply his May 2009 salary to his deficit. Dr. Savage

contends that the contract does not permit Smith Clinic to take this action and that

Smith Clinic cannot recover under a contract it has breached.

       {¶21} Section 4(B)(2) of the employment contract provides:


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       Employee will be eligible for a year-end bonus as follows: The year-

       end bonus will be equal to 100% of the calculated Shareholder

       compensation, as described in Section 4(B)(1) minus salary

       payments as specified in Section 4(A).         If the result of this

       calculation is a negative amount, then such amount shall be treated

       as a cash advance by Corporation to Employee which shall be repaid

       immediately by Employee or offset against Employee’s future salary

       until fully repaid.

(P. Ex. 3); (D. Ex. 1).

       {¶22} Miller testified that Smith Clinic paid Dr. Savage compensation at an

annual rate of $225,000. (Vol. I Tr. at 43). Each month, Smith Clinic would

calculate whether each physician was bringing in enough income to cover his or

her salary, or if the physician was falling short. (Id.). At the end of the year,

Smith Clinic would determine whether each physician would receive a bonus that

would be paid, or if the physician had a deficit that Smith Clinic needed to

recover. (Id.). Miller testified that, “we only distribute money that we’ve actually

collected. So if there’s outstanding accounts receivable or if money owed us it’s

not factored into this computation.     We only distribute money that we have

essentially deposited in the bank.” (Id. at 45). Miller testified that Smith Clinic

subtracts a portion of its expenses from the money that each physician brings in,


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including “the support staff costs, salaries, benefits, supplies, equipment,

malpractice insurance, those types of expenses would have come against the

collections.” (Id. at 46).

         {¶23} Miller identified Plaintiff’s Exhibit 5 as Smith Clinic’s records

reflecting whether Dr. Savage would receive a bonus or was in a deficit from

February 2008 until the end of his employment in May 2009. Miller testified that

as of January 2009, Savage had a deficit of $67,292. (Id. at 66); (P. Ex. 5). Miller

testified that, “instead of reducing his pay by $67,292, which would have

happened under the contract, we were willing to write that off or forgive it over a

five year period.” (Vol. I Tr. at 66). According to Miller, Dr. Savage felt his

arrangement with Smith Clinic was not financially viable. (Id. at 67). Miller

testified:

         we needed to recover this deficit and we got the sense that Dr.

         Savage may be planning to leave, so we went ahead and indicated to

         him that we were gonna withhold his May paycheck as [a] first

         recovery attempt of the deficit that he owed for the preceding fiscal

         year and whatever had transpired subsequent to that.

(Id.).

         {¶24} The plain language of the employment contract requires the

employee, in this case Dr. Savage, to either repay any deficit immediately or offset


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Case No. 9-12-40


it against his future salary. Smith Clinic provided Dr. Savage with the option of

offsetting the deficit against his future salary, but Dr. Savage chose to leave his

employment with the Clinic instead. As a result, Smith Clinic could treat Dr.

Savage’s deficit as a cash advance requiring immediate repayment. We cannot

find that offsetting Dr. Savage’s deficit with the salary he would have received in

May 2009 was a breach of contract since the deficit was treated as a cash advance

that was due immediately.

      {¶25} Dr. Savage’s first assignment of error is, therefore, overruled.

                            Assignment of Error No. II

      The Trial Court erred in finding that the written contract
      clearly vested ownership of all of Dr. Savage’s accounts
      receivable with Smith Clinic.

                            Assignment of Error No. III

      The Court erred by not determining that the contract required
      Smith Clinic to apply amounts received after the departure of
      Dr. Savage to his shortfall and to forward to Dr. Savage all
      amounts received over and above his shortfall.

      {¶26} In his second and third assignments of error, Dr. Savage argues the

trial court erred in finding that the accounts receivable had vested with Smith

Clinic and that the trial court erred in not determining that any payments Smith

Clinic received after Dr. Savage’s departure should be forwarded to Dr. Savage.

Dr. Savage contends that the contract is ambiguous and should be construed

against Smith Clinic.     Dr. Savage argues that Smith Clinic’s bookkeeping

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practices were questionable, so the trial court should not have relied on the records

to determine whether he had a deficit.     Dr. Savage contends that even if Smith

Clinic is entitled to keep the accounts receivable, it is only entitled to keep enough

of the receipts to make up the deficit. Dr. Savage argues that Smith Clinic should

pay him any remaining accounts receivable.

                              1. Accounts Receivable

       {¶27} Section 2 of the employment contract states, “Corporation shall be

entitled to receive all fees and charges attributable to medical services rendered by

Employee for or on behalf of Corporation.” (P. Ex. 3); (D. Ex. 1). We find that

this provision unambiguously provides Smith Clinic with ownership over all fees

resulting from Dr. Savage’s medical services as a Smith Clinic employee,

including accounts receivable. This construction of the employment contract is

consistent with the shareholder employment contract, which provides the

calculation for Dr. Savage’s bonus or deficit. (P. Ex. 3); (P. Ex. 4); (D. Ex. 1).

Section 4(B) of the shareholder employment contract refers to “collections

received,” but makes no mention of accounts receivable when determining an

employee’s compensation. (P. Ex. 4). We cannot find any provision in the

employment contract that entitled Dr. Savage to the accounts receivable, resulting

in an ambiguous contract as he contends.          Consequently, we find that the




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employment contract unambiguously provides Smith Clinic with the right to all

accounts receivable.

       {¶28} This interpretation of the contract is also in line with the contract’s

intent, which creates an incentive for long term employment with Smith Clinic.

Had Dr. Savage remained with Smith Clinic and Smith Clinic collected on the

accounts receivable resulting from his medical services, Dr. Savage would have

received income from those accounts. However, since Dr. Savage terminated his

employment with Smith Clinic before it collected on those accounts receivable,

the accounts were not included in his year-end bonus calculation and vested with

Smith Clinic upon the end of Dr. Savage’s employment. We agree with the trial

court that Dr. Savage does not have any right to the accounts receivable based on

the employment contract.

       {¶29} Dr. Savage also makes an equitable argument that he is entitled to

any accounts Smith Clinic receives beyond the amount of his deficit. In essence,

Dr. Savage contends that Smith Clinic would be unjustly enriched by retaining

accounts receivable resulting from his medical services in excess of his deficit.

Dr. Savage argues Smith Clinic has collected $110,409 from his accounts

receivable since May 1, 2009. Dr. Savage contends that even if this Court agrees

that he must repay his deficit, Smith Clinic still owes him a balance of $61,837.




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      {¶30} To prevail on an unjust enrichment claim, the party must prove each

of the elements, which include: “(1) a benefit conferred by a plaintiff upon a

defendant, (2) knowledge by the defendant of the benefit, and (3) retention of the

benefit by the defendant under circumstances in which it would be unjust to do so

without payment.” Warneck v. Chaney, 194 Ohio App.3d 459, 2011-Ohio-3007, ¶

21 (3d Dist.), citing City Rentals, Inc. v. Kesler, 191 Ohio App.3d 474, 2010-

Ohio-6264, ¶ 12 (3d Dist.). Unjust enrichment is an equitable doctrine based on a

quasi-contract rather than contract law. Homan, Inc. v. A1 AG Serv., L.L.C., 125

Ohio App.3d 51, 2008-Ohio-277, ¶ 21 (3d Dist.). This Court has previously held

that “the doctrine of unjust enrichment cannot apply when an express contract

exists.” Nationwide Mutual Fire Insurance Co. v. Delacruz, 3d Dist. No. 5-10-17,

2010-Ohio-6068, ¶ 21, citing Bickham v. Standley, 183 Ohio App.3d 422, 2009-

Ohio-3530, ¶ 14 (3d Dist.). In this case, neither party disputes the validity of the

second employment contract, only whether Smith Clinic and Dr. Savage could

extend it beyond its expiration date. Furthermore, we have found that the contract

was extended and that it expressly provides Smith Clinic with the right to the

accounts receivable.    As a result, Dr. Savage cannot prevail on his unjust

enrichment claim.




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                               2. Modified Records

       {¶31} Dr. Savage finally argues that Smith Clinic had questionable

bookkeeping practices, so the records it provided to the trial court were an

unreliable source for determining the amount of his alleged deficit. In particular,

Dr. Savage points to testimony presented at trial that Smith Clinic had modified

some of its records prior to submitting them to the trial court, specifically Dr.

Savage’s retirement account and allocations of income from Marion Area Health

Center (MAHC) and Marion Ancillary Services (MAS). Dr. Savage alleges that it

is not possible to know the number of modifications Smith Clinic made to its

records, and that they are too unreliable for Smith Clinic to use to meet its burden

of proof in establishing the amount of Dr. Savage’s deficit.

       {¶32} MAHC and MAS are two entities that are part of Smith Clinic’s

ancillary services. (Vol. I Tr. at 47-48). Smith Clinic physicians may purchase an

interest in these entities and then receive a portion of the profits. (Id. at 47-48,

50). Smith Clinic physicians who purchase an interest also share in the entities’

losses. (Id. at 47-48). Section 4(B)(4) of the shareholder employment contract

addresses the share of income Smith Clinic physicians can collect from MAHC

and MAS. (P. Ex. 4). Subsection (a) of the provision states, “[t]he sum of total

income derived from ancillary services as determined by the Corporation’s Board

of Directors, income received from Marion Health System, and Marion Ancillary


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Services is divided by the total number of physician-employees participating in

this formula.” (Id.) (emphasis added).

       {¶33} Miller testified that Smith Clinic had initially provided Dr. Savage

with an allocation of the income received from MAHC and MAS even though he

had not elected to participate by making an investment in the entities. (Vol. I Tr.

at 50). Miller testified that Smith Clinic originally provided Dr. Savage with a

share of the income as a benefit and because Smith Clinic wanted to help him

build his practice. (Id.). Miller testified that Smith Clinic provided Dr. Savage

with credit for earnings from MAHC and MAS for the fiscal year ending in

January 31, 2009. (Id.). Miller testified that “[s]ubsequently to that we changed

our position as a group and taken [sic] the position that for individuals to receive a

credit for allocating income they need to make the investment and not just have it

be given to them as a benefit.” (Id.). Miller testified that Smith Clinic “subtracted

the allocated income to Dr. Savage for this time period because at the time he left

he had not made any investment in either entity.” (Id.). Miller testified that Smith

Clinic subtracted $6,000 of income that had been allocated to Dr. Savage from

MAHC and MAS. (Id.).

       {¶34} Victoria Matlack, the director of human resources at Smith Clinic,

testified that Dr. Savage did not elect to participate in the 401K or profit sharing

plans. (Id. at 235-236). Matlack testified that there was an error in Smith Clinic’s


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records indicating that Dr. Savage had money in the retirement plan. (Id. at 241).

Matlack testified that she verified Dr. Savage’s fund and confirmed that he did not

have, and never has had, funds in the 401K plan. (Id. at 237). Matlack testified

that she did not know how the error occurred, but “we looked at the plan and he

was never expensed any money for retirement from my side.” (Id. at 241).

       {¶35} The trier of fact is in a better position to observe the demeanor of the

witnesses, examine the evidence, and weigh the credibility of the testimony and

evidence. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). The

testimony presented at trial, if believed, provided evidence that Dr. Savage had

elected not to participate in MAHC or MAS, so he did not have any right to

income from those entities based on the contract’s plain language.               The

shareholder employment contract requires physicians to participate in MAS and

MAHC to collect a portion of the income. (P. Ex. 4). The trial testimony also

established that Dr. Savage had elected not to participate in Smith Clinic’s

retirement plan and that any records indicating he may have money in the 401K

plan were the result of an error. Based on this evidence, we cannot find that Smith

Clinic’s bookkeeping practices were so questionable that the trial court could not

reasonably rely on them for the purpose of determining whether Dr. Savage had a

deficit or was entitled to a bonus.




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       {¶36} Dr. Savage’s second and third assignments of error are, therefore,

overruled.

       {¶37} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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