[Cite as Gill v. Rana, 2017-Ohio-591.]


                                         COURT OF APPEALS
                                     MUSKINGUM COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


 KULWINDER GILL, et al.,                      :       JUDGES:
                                              :       Hon. Patricia A. Delaney, P.J.
         Plaintiff - Appellees                :       Hon. John W. Wise, J.
                                              :       Hon. Craig R. Baldwin, J.
 -vs-                                         :
                                              :
 RAKESH RANA, et al.,                         :       Case No. CT2016-0027
                                              :
         Defendant - Appellants               :       OPINION



 CHARACTER OF PROCEEDING:                             Appeal from the Muskingum County
                                                      Common Pleas Court, Case No.
                                                      CH2015-0011




 JUDGMENT:                                            Affirmed




 DATE OF JUDGMENT:                                    February 13, 2017




 APPEARANCES:

 For Plaintiff-Appellees                              For Defendant-Appellants

 RICHARD O. MAZANEC                                   SANJAY K. BHATT
 1422 Euclid Ave., Suite 500                          2935 Kenny Rd., Suite 225
 Cleveland, Ohio 44115                                Columbus, Ohio 43221
[Cite as Gill v. Rana, 2017-Ohio-591.]



 Baldwin, J.

         {¶1}     Defendants-appellants Rakesh Rana and State Street Market, Inc. appeal

 from the June 23, 2016 Amended Journal Entry of the Muskingum County Court of

 Common Pleas.

                                  STATEMENT OF THE FACTS AND CASE

         {¶2}     Appellant State Street Market, Inc. is an Ohio corporation which owns and

 operates a carry-out store and liquor store. Appellant Rakesh Rana (“appellant Rana”) is

 the sole shareholder and owner of appellant State Street.

         {¶3}     Appellee Kulwinder Gill (“appellee Gill”) “and appellee Jasvinder Gill filed a

 complaint against appellants seeking compensation for services performed for appellants

 at the State Street Market. Appellants filed a counterclaim. After the parties agreed to

 waive a jury trial and try the liability issues separately from the damage claims, a bench

 trial on the issue of liability was held on March 10, 2016.

         {¶4}     Testimony was adduced at trial that appellee Kulwinder Gill started working

 at the business in February of 2010. An agreement was drawn up by appellants’ attorney

 that stated that appellee Gill would receive $3,333.00 a month for managing the business

 plus an additional 25% of the profits. The agreement further stated that appellee Gill’s

 wife would receive 25% of the profits when she came later. Appellee Gill testified that he

 signed the agreement and then gave it to appellant Rana and that he began working at

 the business on February 12, 2010. He testified that he worked from 7:00 a.m. to 10 p.m.,

 except for Sundays when the business closed one hour earlier.

         {¶5}     Appellee Gill testified that on November 26, 2010, he started receiving a

 payroll check in the amount of $1,000.00 a week. He testified that he was not
[Cite as Gill v. Rana, 2017-Ohio-591.]


 compensated for his work from February 12, 2010 through November 26, 2010 when he

 went on the payroll. The following testimony was adduced when he was asked why he

 would work for 40 weeks without pay:

         A. Because our verbal very clearly and our understanding – understanding

         and agreement was we going to make – see what the property makes so

         we can understand, see how much property makes so we can split, the way

         I understand. And when store have a cash flow money, that’s when, you

         know, you get paid.

         Q. All right.

         A. And then he [appellant Rana] went out of country.

         {¶6}     Transcript of March 10, 2016 trial at 53. According to appellee Gill, the two

 never divided any profits. He further testified that he regularly discussed the operation of

 State Street with appellant Rana who monitored the business’s bank statements and

 check registers. When asked how many hours he worked, appellee Gill testified that he

 typically worked over one hundred hours a week. Between November 26, 2010 and March

 11, 2011, when he was in a car accident and ended his employment, appellee Gill was

 paid $1,000.00 a week and given credit for 80 hours a week.

         {¶7}     On cross-examination, appellee Gill testified that he signed the agreement,

 but then testified that he never signed the same. He further testified that prior to starting

 managing the business, the parties agreed that “we [appellee Gill and his wife] going to

 take some money as per month, then the profit.” Transcript of March 10, 2016 trial at 76.

 He agreed that they were to take “some money that you needed to live on” and then split
[Cite as Gill v. Rana, 2017-Ohio-591.]


 the profits. Transcript of March 10, 2016 trial at 76. Appellee Gill testified that the parties

 agreed on a minimum of $1,000.00 a week.

         {¶8}     Testimony was adduced at trial that appellee Gill did all of the hiring and

 firing for the business and paid vendors by either paying cash or writing and signing

 checks. He also signed the payroll checks for all employees, including his own, and

 submitted payroll information to the accountant for the business that included the number

 of hours that the employees worked. Appellant Gill testified that he decided not to ask for

 money initially because, “per our agreement that cash flow has to be there in order to get

 it.” Transcript of March 10, 2016 trial at 89. He stated that the agreement was that he

 would start taking money when there was cash flow and testified that in the fall of 2010,

 he put his own name on the sheet faxed to the accountant and started receiving

 paychecks. The checks issued to appellee Gill for pay, commencing in November of 2010,

 were signed by him.

         {¶9}     At trial, appellee Gill was questioned about his response to an interrogatory

 in which he stated that he had signed the parties’ written agreement in November of 2009

 at appellants’ attorney’s office. Appellee denied that he had signed the agreement in such

 office and indicated that it was his counsel who had answered the interrogatory.

         {¶10} On redirect, appellee Gill testified that he never intended to volunteer his

 time and not to be paid for the first 40 weeks that he worked at the business.

         {¶11} At trial, appellant Rakesh Rana testified on cross-examination that he

 monitored the business accounts on a regular basis and spoke with appellee Gill

 whenever he had a question. He, when asked, agreed that he did not expect appellee Gill

 to work for free and testified that, in his mind, he reached an agreement with appellee Gill
[Cite as Gill v. Rana, 2017-Ohio-591.]


 that appellee Gill would be paid $40,000.00 a year in salary. According to appellant Rana,

 appellee Gill chose not to be paid for the first 40 weeks he worked at the business because

 he wanted to prove himself first and see that the business was making money before

 taking a paycheck. Appellant Rana agreed that appellee Gill was not paid for the first 40

 weeks he was there and did not dispute that appellee Gill’s time sheets showed that he

 worked at least 80 hours a week.

         {¶12} On direct examination, appellant Rana testified that appellee Gill did not

 consult him before he started paying himself $1,000.00 a week starting in October of

 2010. He further testified that appellee Gill never contacted him prior to such time to

 indicate that he wanted to get paid. The following is an excerpt from his trial testimony:

         Q. So in – in October or so of 2010, when he started taking a paycheck, did he call

         you up and say, hey, Rocky [appellant Rana], I’m going to pay myself?

         A. No.

         Q. Did he – and did he say I’m going to start paying myself $1,000 a month – or a

         week?

         A. No.

         Q. So did he call you up in March, April, May, June, July, August, all those,

         2010 and say, Rocky, I want to get paid?

         A. No, He never said he wants to get paid.

         Q. Whose decision was it whether to take the money that – that he should

         have -- that – that he could have taken?

         A. It was that he decided to draw $1,000 a week for him and his wife, but

         since, you know, I , you know, watched it, and since he didn’t get paid to –
[Cite as Gill v. Rana, 2017-Ohio-591.]


         start with, so I didn’t -- you know, more or less him getting paid. So, I mean,

         by the time he was there they ended up paying himself $40,000.

         Q. So he was paying himself more than –

         A. More.

         Q. But you were okay with that, because he didn’t take the money before?

         A. He didn’t take anything to start with, so I didn’t mind them paying that

         much, you know, money. So eventually which – which came down to over

         $40,000.

         Q. Okay.

         A. Yeah.

         Q. Did you ever agree to have his wife take – or Ms. Gill take $1,000 a

         week?

         A. Well, that was $40,000 between him and his wife, so I didn’t mind who -

         - who get the check, you know, who – but she – she was working there, or

         – between him and her, one of them will be there to, you know, run the

         place.

         Q. So in those months that he did not take the check, was it your decision

         not to pay him, or was that his decision not to take the check?

         A. That was his decision not to pay himself.

         {¶13} Transcript of March 10, 2016 trial at 149-150.

         {¶14} Appellant Rana also denied ever telling appellee Gish not to take a

 paycheck for the first 40 weeks and testified that appellee Gill told him that he wanted to

 prove himself before taking money. He testified that he went to India in April of 2010 after
[Cite as Gill v. Rana, 2017-Ohio-591.]


 recovering from heart surgery and did not come back until June or July of 2010. On

 recross, appellant Rana testified that he never objected to appellee Gill paying himself

 and his wife $1,000.00 a week without consulting with him because appellee Gill had

 never paid himself earlier from February of 2010 through October of 2010.

         {¶15} At the conclusion of the evidence, the trial court asked the parties to brief

 the issue of whether or not appellee Gill had waived his right to be compensated for the

 first 40 weeks of his employment. Subsequently, the trial court, as memorialized in a

 Journal Entry filed on April 21, 2016, found that appellee Gill did not waive his right to be

 compensated for his hours of employment. The trial court scheduled a trial on damages

 for June 3, 2016.

         {¶16} At the June 3, 2016 trial, appellant Rana testified that, as stipulated to by

 the parties, appellee Gill worked at the business from February 10, 2010 until March 10,

 2011. He testified that, prior to appellee Gill working there, the parties agreed that appellee

 Gill would be paid $3,300.00 a month, or $40,000.00 per year, and that the parties

 had never signed a written contract that had been drafted. According to appellant Rana,

 appellee Gill managed the business from February 12, 2010 through March 10,

 2011 and did all of the hiring and firing. Appellant Rana testified that most of the

 employees made minimum wage and that when appellee Gill started taking a salary of

 $1,000.00 a week in November of 2010, he did not ask appellant Rana how much to take.

 Appellant Rana testified that he allowed him to take $1,000.00 a week because appellee

 Gill had not drawn a salary for the first 40 weeks. Appellant Rana testified that he did not

 agree that appellee Gill’s wife could draw a salary of $1,000.00 a week once she started

 working at the business in September of 2010. He testified that it was his understanding
[Cite as Gill v. Rana, 2017-Ohio-591.]


 that the manager’s compensation was split between the two and that he had never hired

 the wife to manage his business. Appellant Rana asked that any money that the trial court

 found appellee Gill to be entitled to be set-off by the money paid to her.        On cross-

 examination, he admitted that he monitored the checking accounts weekly and knew what

 both appellees were being paid. Appellant Rana, on redirect, testified that when appellee

 Gill started working at the store in February of 2010, there was not an agreement, written

 or verbal, between them as to how much he would be paid for his services.

         {¶17} At the damages trial, appellee Gill testified that there was never an

 agreement between him and appellant Rana that if appellee Gill was paid $1,000.00 a

 week, it would compensate him for the first 40 weeks he worked at the business. He also

 denied that they had an agreement that, by paying appellee Gill’s wife, appellant Rana

 would be compensating appellee Gill for such time.     When asked about the amount of

 damages that he was seeking, appellee Gill testified that he was seeking $1,000.00 a

 week for 52 weeks and that appellant Rana had agreed to such amount. He further

 testified that he came up with the figure of $1,000.00 a week “[b]ecause we was supposed

 to take what we need to make my ends meet until we shared the profits” and he needed

 $1,000.00 a week to make ends meet. Transcript of June 3, 2016 trial at 33.

         {¶18} The trial court, pursuant to a Journal Entry filed on June 3, 2016, awarded

 appellee Gill a judgment in the amount of $1,000.00 a week for forty (40) weeks, for a

 total of $40,000.00. In an Amended Journal Entry filed on June 23, 2016, the trial court

 stated that such amount was payable individually or jointly by both appellants.

         {¶19} Appellants now raise the following assignments of error on appeal:
[Cite as Gill v. Rana, 2017-Ohio-591.]


         {¶20} THE TRIAL COURT ERRED BY RULING THAT APPELLEE, GILL, DID NOT

 WAIVE HIS RIGHT TO CLAIM COMPENSATION FOR THE PERIOD OF FEBRUARY,

 2010, THROUGH OCTOBER, 2010.

         {¶21} THE TRIAL COURT ERRED IN AWARDING DAMAGES TO APPELLEE IN

 THE AMOUNT OF $40,000.

                                                   I

         {¶22} Appellants, in their first assignment of error, argue that the trial court erred

 in finding that appellee Gill did not waive his right to compensation for the period from

 February of 2010 through October of 2010. Appellant argues that the trial court’s finding

 is against the manifest weight of the evidence.

         {¶23} We note that a judgment supported by some competent, credible evidence

 will not be reversed by a reviewing court as against the manifest weight of the evidence.

 C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 280, 376 N.E.2d 578 (1978).

 A reviewing court must not substitute its judgment for that of the trial court where there

 exists some competent and credible evidence supporting the judgment rendered by the

 trial court. Myers v. Garson, 66 Ohio St.3d 610, 1993–Ohio–9, 614 N.E.2d 742. The

 underlying rationale for giving deference to the findings of the trial court rests with the

 knowledge that the trial judge is best able to view the witnesses and observe their

 demeanor, gestures, and voice inflections, and use these observations in weighing the

 credibility of the proffered testimony. Seasons Coal Co. v. City of Cleveland, 10 Ohio

 St.3d 77, 80, 461 N.E.2d 1273 (1984).

         {¶24} “ ‘Waiver’ is defined as a voluntary relinquishment of a known right.” State

 ex rel. Wallace v. State Med. Bd. of Ohio, 89 Ohio St.3d 431, 435, 732 N.E.2d 960, 2000-
[Cite as Gill v. Rana, 2017-Ohio-591.]


 Ohio-213. Waiver assumes one has an opportunity to choose between relinquishing or

 enforcing a right. Chubb v. Ohio Bur. of Workers' Comp., 81 Ohio St.3d 275, 279, 1998-

 Ohio-628, 690 N.E.2d 1267. A party asserting a waiver “must prove a clear, unequivocal,

 decisive act of the party against whom the waiver is alleged, showing such a purpose or

 acts amounting to an estoppel on his part.” White Co. v. Canton Transportation Co., 131

 Ohio St. 190, 2 N.E.2d 501, paragraph four of the syllabus (1936).

         {¶25} In the case sub judice, there is no dispute that appellee Gill was not

 compensated for the period from February 12, 2010 through November 26, 2010. While

 appellants contend that he waived his right to compensation for such period, we disagree.

         {¶26} At the March 10, 2016 trial, appellant Rana testified that he understood that

 appellee Gill would receive a salary of $40,000.00 per year ($3,333.00 per month).

 Appellee Gill testified that he was presented with a proposed employment agreement that

 provided that he would receive $3,333.00 a month plus 25% of the profits and his wife

 would receive 25% of the profits.

         {¶27} While there was testimony that appellee Gill worked long hours at the

 business seven days a week and was, as manager, responsible for payroll and hiring and

 firing employees, he did not receive any compensation for the period from February 12,

 2010 to November 26, 2010. When asked why he would work at the business for 40

 weeks without getting paid, he testified that he wanted the business to show a monthly

 profit and positive cash flow before he was compensated. As noted by appellees, appellee

 Gill never signed a written waiver of his compensation for the 40 week period. He testified

 that the parties’ agreement was that when the business had a cash flow, he would start

 taking a salary.
[Cite as Gill v. Rana, 2017-Ohio-591.]


         {¶28} Moreover, at the March 10, 2016 trial, appellant Rana testified that he did

 not expect appellee Gill to work for free and that, in his mind, he reached an agreement

 to pay appellee Gill $40,000.00 a year. Thus, there was testimony that appellant Rana

 expected to pay appellee Gill for his services during the 40 week period and that he

 benefitted from the services that appellee Gill provided.

         {¶29} Based on the foregoing, we find that the trial court did not err in finding that

 appellee Gill did not waive his right to be compensated for the period in question. There

 was competent credible evidence supporting the trial court’s decision.

         {¶30} Appellants’ first assignment of error is, therefore, overruled.

                                                   II

         {¶31} Appellants, in their second assignment of error, contend that the trial court

 erred in awarding damages to appellee Gill in the amount of $40,000.00. Appellants

 argue that the trial court’s decision was against the manifest weight of the evidence and

 that the reasonable value of appellee Gill’s services to appellants was not $1,000.00 a

 week as found by the trial court. We disagree.

         {¶32} At the trial on damages, appellant Rana testified that, prior to appellee Gill

 starting working at the business, they agreed that appellee Gill would be paid $3,300.00

 a month, or $40,000.00 per year.        He testified that he later agreed with appellant Gill

 receiving $1,000.00 a week for his services managing the business because “he’s like

 compensating for that unpaid amount.” Transcript of June 3, 2016 trial at 13. Appellee Gill

 received a salary of $1,000.00 a week from November 10, 2010 until he was injured in an

 automobile accident in March 10, 2011 without any objection from appellant Rana. At the

 damages trial, appellee Gill denied that there was ever an agreement that, if he was paid
$1,000.00 a week, it would compensate him for the first 40 weeks that he worked at the

business.

       {¶33} We concur with appellees that the factual evidence and appellant Rana’s

own testimony provide a reasonable basis for the trial court’s award of $1,000.00 per week,

or $40,000.00, to compensate appellee Gill.

       {¶34} Appellants’ second assignment of error is, therefore, overruled.

       {¶35} Accordingly, the judgment of the Muskingum County Court of Common

Pleas is affirmed.

By: Baldwin, J.

Delaney, P.J. and

Wise, J. concur.
