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

IN THE COURT OF APPEALS OF OHIO 

 FOURTH APPELLATE DISTRICT 

LAWRENCE COUNTY 

TODD HARRAH, : 

Plaintiff-Appellee, : Case No. 18CA8 

vs. : 

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

 

 

Defendant-Appellant. : 

 APPEARANCES: 

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

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

CIVIL CASE FROM COMMON PLEAS COURT 

DATE JOURNALIZED:1-7-19 

ABELE, J. 

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

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

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

FIRST ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ABUSED ITS DISCRETION AND 

COMMITTED CLEAR ERROR BY UTILIZING THE 

‘ORDINARY INCOME’ LINE FROM THE SUBCHAPTER-S 

CORPORATION’S FEDERAL INCOME TAX RETURN TO 

DETERMINE ‘NET PROFITS’ FOR PURPOSES OF 

PROFIT-SHARING CALCULATION.” 
LAWRENCE, 18CA8 2

SECOND ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ABUSED ITS DISCRETION AND 

OTHERWISE MADE A CLEAR ERRONEOUS FINDING BY 

FAILING TO ASSIGN THE PLAINTIFF-APPELLEE’S HEALTH 

INSURANCE COSTS AGAINST HIS PROFIT-SHARING 

WHEN THE TWO OTHER COMPANY EMPLOYEES WHO 

HAD HEALTH INSURANCE AND WHO SHARED IN 

COMPANY PROFITS PAID FOR THEIR HEALTH 

INSURANCE THROUGH THEIR PROFITS.” 

THIRD ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ABUSED ITS DISCRETION AND 

OTHERWISE MADE A CLEAR ERRONEOUS FINDING BY 

FAILING TO HAVE THE PLAINTIFF-APPELLEE 

REIMBURSE DEFENDANT-APPELLANT FOR THE 

KINGDOM MOTORCYCLE TRAILER AND GOLF CART AT 

ISSUE IN THE TRIAL BELOW FOR WHICH 

DEFENDANT-APPELLANT HAD PAID AND WHICH THE 

TRIAL COURT AWARDED TO PLAINTIFF-APPELLEE.” 

FOURTH ASSIGNMENT OF ERROR: 

“THROUGH ITS FUNDAMENTAL MISTAKE IN 

DETERMINING DEFENDANT-APPELLANT’S NET PROFITS 

FOR PURPOSES OF PLAINTIFF-APPELLEE’S 

PROFIT-SHARING, THE TRIAL COURT ABUSED ITS 

DISCRETION AND OTHERWISE MADE A CLEAR 

ERRONEOUS FINDING BY FAILING TO AWARD 

DEFENDANT-APPELLANT ITS OVERPAYMENT OF 

PROFIT-SHARING TO PLAINTIFF-APPELLEE.” 

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

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

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

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

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

profit-sharing agreement with appellee. 

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

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

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

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

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

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

amount of $83,434.48. 

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

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

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

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

overpaid appellee. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

brother, Tom, received health insurance through the company. 

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

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

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

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

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

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

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

that her deposition testimony was incorrect. 

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

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

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

statements were not audited. 

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

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

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

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

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

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

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

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

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

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

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

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

because 

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

different label’s [sic] of profits and that’s what I said. I never really looked at the 

tax returns for anything. I looked at the audited financial statements and that’s 

where I kept getting confused when he was pointing out the tax returns on the 

profits. Cause we didn’t really call it . . . it was called profit sharing but we 

didn’t call it profits[;] we went by the net income is what it was called. Is what I 

associated everything with. Like I said that was my confusion. 

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

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

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

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

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

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

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

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

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

sharing.” 

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

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

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

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

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

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

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

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

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

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

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

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

include health insurance. 

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

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

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

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

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

from the amount of appellee’s profit-share. 

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

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

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

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

such as depreciation. 

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

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

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

witness stated that generally accepted accounting principles suggest using audited financial 

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

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

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

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

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

financial statements to determine the amount of net profits. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

amount. 

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

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

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

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

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

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

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

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

counterclaim. 

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

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

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

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

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

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

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

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

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

profit-sharing for appellee of $653,240.20. 

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

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

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

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

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

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

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

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

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

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

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

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

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

of error, we combine our discussion of them. 

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

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

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

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

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

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

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

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

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

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

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

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

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

A 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“‘[I]n determining whether the judgment below is manifestly against the weight of 

the evidence, every reasonable intendment must be made in favor of the judgment 

and the finding of facts. * * * 

If the evidence is susceptible of more than one construction, the reviewing 

court is bound to give it that interpretation which is consistent with the verdict and 

judgment, most favorable to sustaining the verdict and judgment.’” 

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

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

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

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

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

in Bugg: 

It is the trier of fact’s role to determine what evidence is the most credible 

and convincing. The fact finder is charged with the duty of choosing between 

two competing versions of events, both of which are plausible and have some 

factual support. Our role is simply to insure the decision is based upon reason 

and fact. We do not second guess a decision that has some basis in these two 

factors, even if we might see matters differently. Rather, we must defer to the 

trier of fact in that situation. 

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

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

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

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

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

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

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

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

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

2010 WL 4273232, ¶ 21. 

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

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

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

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

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

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

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

(1983). 

B 

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

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

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

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

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

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

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

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

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

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

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

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

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

63. 

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

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

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

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

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

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

1 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

appellee is against the manifest weight of the evidence. 

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

assignment of error. 

2 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

health insurance from the profits. 

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

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

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

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

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

finding that appellee’s compensation package included health insurance. 

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

assignment of error. 

3 

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

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

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

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

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

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

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

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

the cost of the motorcycle trailer. 

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

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

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

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

must reimburse appellant for its cost. 

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

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

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

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

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

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

manifest weight of the evidence. 

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

assignment of error. 

4 

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

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

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

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

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

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

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

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

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

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

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

JUDGMENT AFFIRMED. 
LAWRENCE, 18CA8 19

JUDGMENT ENTRY 

It is ordered that the judgment be affirmed and that appellee recover of appellant the costs 

herein taxed. 

The Court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this Court directing the Lawrence County 

Common Pleas Court to carry this judgment into execution. 

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

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

For the Court 

BY: 

 Peter B. Abele, Judge 

 

NOTICE TO COUNSEL 

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the 

time period for further appeal commences from the date of filing with the clerk. 
LAWRENCE, 18CA8 20