[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, H untington, 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 Count y Common Pleas Court judgment in favor of Todd Harrah, plaintiff below a nd appellee herein. Mike Enya rt and Sons, Inc., defendant below and appellant here in, 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 Mi ke asked his father, Bill Enyart, for a cash-infusion. Around that time, Mike made Tom En yart, 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 andLAWRENCE, 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 th at 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 cont emplated under the oral profit-sh aring agreement; (2) whether the parties’ oral employment agreement afforded a ppellee health insurance; and (3) whether appellee had any remaining sums due unde r 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 insura nce. Appellee claimed that “from the minute [they] had the meeting * * * [health insura nce] was pretty much set in stone.” {¶ 7} Appellee related that althoug h the parties did not reduce their agreement to writing,

he believed that the ne t profits would be dete rmined based upon the company’s tax returns. Appellee also testified that after he obtained health insurance, he gave th e paperwork to ChristieLAWRENCE, 18CA8 4 Enyart, appellant’s vice president, and Christie pa id for it. Appellee furt her 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 appe llee that they each could have a golf cart. {¶ 8} Mike Enyart, however, testified that th e parties did not di scuss 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 comput ed net profits. Mike also testified that he and appe llee did not discuss health insurance and that it “was between [appellant] and accounting and the offi ce.” Mike related that he di d 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 fa ther. Mike additionally state d, 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 a ppellee in April 2008 and agreed to pay appellee ten percent of the co mpany’s net profits. Christie denied that she used the tax returns to calculate appellee’s profit-share. She admitted, however, that when she gave herLAWRENCE, 18CA8 5 deposition about a year earlier, she st ated that she used the tax retu rns to arrive at net profit.

Christie claimed that she “was * * * confus ed” when she gave her deposition testimony and explained that she and appellee “nev er looked at tax returns for anyt hing.” 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 explai ned that until 2011 or 2012, the company’s financial

statements were not audited. {¶ 11} Later, when appellant called Christie on direct examina tion, 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 co mpany’s financial statements. Christie indicated that she did not use the comp any’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 th at she used a profit and loss statement from Quickbooks to determine the amount of appellee’s profit-shar e, and instead claimed that she kept “like a piece of paper.” Christie stat ed, 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 talkin g about profits, cause there’s so manyLAWRENCE, 18CA8 6 different label’s [sic] of profits and that’s what I sai d. I never really looked at the tax returns for anything. I looked at the audited financial stat ements 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 pr ofit 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 To m how to determine th e amount of appellee’s profit-share. She stated that she “had the fi nancials” 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 fina ncials,” the “binder from the acc ountant,” and she “opened it up” and “said okay, is this what we’re going off of.” Christie indicated th at both appellee and Tom were present when she asked what figure to us e to calculate appellee’s profit-share and appellee did not object “to using * * * the financial st atements 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 in surance 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 supplie r would credit appellant’s account,

but Christie stated that the s upplier did not credit appellant’s acc ount and, thus, she believes thatLAWRENCE, 18CA8 7 appellee should either pay for the go lf 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 per cent of the net profits. Tom explained that appellee’s then-employer paid appellee $1,400 per week and provi ded 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 di d 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 ne ver 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 issu ed a decision and determined to ascertain the amount of net prof its due appellee by considering the amount shown on line 21 of the company’s federal tax return. Although, the ma gistrate recognized that appellant’s expert witness stated that generally accepted accounting principles suggest us ing audited financial statements for profit sharing agreements, the magistrate observed, however, that when appellee began to work for the company and during his fi rst three years of employment, the company didLAWRENCE, 18CA8 8

not have audited financia l statements. Instead, “[t]he only av ailable 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 cour se of his employment tota led $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. Th e magistrate did not, however, deduct the cost of appellee’s h ealth insurance premiums becau se “the preponderance of the evidence establishes the [appellee] was offered th e 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 insura nce premiums.” The ma gistrate additionally

observed that both Mike and Tom “also took out health insurance policie s and their premiums were never charged against their respective profit sharing plans.” The magistrate further noted that the company took a tax deduction fo r the health insurance premiums. {¶ 22} The magistrate did agree that appellee s hould bear the cost of the motorcycle trailer and awarded appellee th e 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 appe llant paid for the golf cart and expected theLAWRENCE, 18CA8 9 vendor to “pay” for the golf cart by offering a ppellant credits or a discount, but the evidence did not sufficiently establish whether the vendor followe d through with its promise. The magistrate nevertheless found that the golf cart was a gift to appellee. The ma gistrate 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 dis missed appellant’s

counterclaim. {¶ 25} Appellant subsequently filed objections to the magi strate’s decision. Appellant objected to the magistrate’s profit-sharing calculation and determination that appellee’s profit-share over the years tota led $730,013.36. Appellant argued that the magistrate improperly calculated profits by examining the amount of ordinary income repor ted on appellant’s tax returns. Appellant claimed th at its expert witness testifie d that generally accepted accounting practices indicate that net prof its should be determined by ex amining 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 we re not chargeable against his profit-sharing; (2) appellee did not need to pay for the golf car t. Appellant claimed that it paid $5,800 for the golf cart and that the magistrate should ha ve offset $5,800 from the amount of appellee’s profit-sharing. Appellant thus requested the court to reject th e magistrate’s decision, to awardLAWRENCE, 18CA8 10 appellant $30,246 and release the motorcycle to appellant. {¶ 27} On March 20, 2018, the trial court overru led appellant’s objections to the magistrate’s decision. The cour t determined that ten percent of the net prof its 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 counter claim. This appeal followed. {¶ 28} Appellant’s four assi gnments 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 retu rn. 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 e rror, appellant challenges th e trial court’s finding that appellee’s health insurance premiums were pa rt of his compensation package and that the premiums should not be charged agai nst 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 mo torcycle trailer w ithout 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 th e manifest weight of the evidence.LAWRENCE, 18CA8 11

A {¶ 33} Appellate courts w ill 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 fi nd a trial court’s decision agains t the manifest weight of the evidence only in the “‘exceptional case in whic h 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 mu st 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 consis tent with the verdict and judgment, most favorable to sustai ning the verdict and judgment.’”

Id. , quoting Seasons Coal Co. , 10 Ohio St.3d at 80, fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, S ection 60, at 191–192 (1978). {¶ 34} Consequently, “we should not reverse a judgment merely because the record

contains evidence that could reasona bly 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 ch arged 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 deci sion 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, ne ither 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 255LAWRENCE, 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, re ject, or modify a magistrate’s decision lies within the discretion of the trial cour t 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 di scretion 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 cente r upon the terms of the parties’ oral employment and profit-shar ing contract. “‘A contract is genera lly defined as a promise, or a set of promises, actionable upon breac h. 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 or al contract rarely exis ts 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 th e parties’ conduct shows that they intended the term to mean the net profits as shown on the co mpany’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 th e manifest weight of the eviden ce. 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 comp any’s financial statements to ascertain the net profits. As appellee’s counsel noted, however, Christie testified during herLAWRENCE, 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 prof its, 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 ha ve found Christie’s testimony that she relied upon the company’s financial statem ents 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 re turns to ascertain the amount of net profits due appellee is against the manifest weight of the evidence. {¶ 41} Accordingly, based upon the foregoing r easons, we overrule appellant’s first assignment of error.

2 {¶ 42} In its second assignment of error, appellant challenges the trial cour t’s conclusion that appellee’s health insurance premiums should not be charged ag ainst 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 employme nt 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 a ppellant would provide health insurance coverage. In light of this evidence, we will not second-guess th e trial court’s finding that appellant agreed to pay appe llee’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 evid ence 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 healthLAWRENCE, 18CA8 17

insurance. The trial court coul d have chosen to believe those three individuals’ testimony and could have reasonably discounted any subsequent evidence that appellant belie ves negates a finding that appellee’s compensation package included health insurance. {¶ 46} Accordingly, based upon the foregoing r easons, 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 re sponsible for the cost of the mo torcycle trailer. Additionally, the court charged the cost of the motorcycle tra iler against appellee’s shar e of the outstanding net profits. We therefore reject appe llant’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 offe red to pay for appellee’s golf cart in the form of a credit to appellant’s account. Appellant c ontends that it purchased appell ee’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 appe llant 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 golfLAWRENCE, 18CA8 18 membership–both of which appella nt paid for–and that neith er Tom nor Mike reimbursed appellant for the costs. The court thus coul d 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 r easons, 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 cont ends 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 th ree assignments of error also disposes of its fourth assignment of e rror. 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 disa gree with appellant that appellee owes it $29,711.06. {¶ 54} Accordingly, based upon the foregoing r easons, we overrule a ppellant’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 reas onable 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 Appella te Procedure. Hoover, P.J. & McFarland, J.: C oncur in Judgment & Opinion

For the Court

BY: Peter B. Abele, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.LAWRENCE, 18CA8 20