Wooden v. Marysville Animal Care Ctr.

[Cite as Wooden v. Marysville Animal Care Ctr., 2026-Ohio-1570.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Cassie Wooden,                                      :

                Plaintiff-Appellee,                 :
                                                                       No. 25AP-379
v.                                                  :               (C.P.C. No. 22CV-3348)

Marysville Animal Care Center LLC,                  :              (REGULAR CALENDAR)

                Defendant-Appellant.                :



                                          D E C I S I O N

                                    Rendered on April 30, 2026


                On brief: Behal Law Group LLC, and John M. Gonzales, for
                appellee. Argued: John M. Gonzales.

                On brief: Olsheski Law Co., LPA, and Jessica L. Olsheski, for
                appellant. Argued: Jessica L. Olsheski.

                 APPEAL from the Franklin County Court of Common Pleas

BOGGS, P.J.

        {¶ 1} Defendant-appellant, Marysville Animal Care Center, LLC, appeals the
judgment of the Franklin County Court of Common Pleas which found in favor of plaintiff-
appellee, Cassie Wooden, D.V.M., on a breach of contract claim. For the following reasons,
we affirm the trial court’s judgment.
I. PROCEDURAL HISTORY AND FACTS
        {¶ 2} This case stems from an offer of employment and an employment agreement
made to Dr. Cassie Wooden to serve as Medical Director and Veterinary Associate at the
Marysville Animal Care Center (“Care Center”) a veterinary clinic in Marysville, Ohio,
owned by Bindig, LLC. Bindig, LLC has four partners, including Dr. Brian Carson.
No. 25AP-379                                                                                  2


       {¶ 3} On July 30, 2018, Dr. Wooden and Bindig, LLC entered into an Employment
Agreement with an effective date of September 1, 2018. The Employment Agreement
contained a provision regarding potential partnership for Dr. Wooden which stated:
              At Employer’s sole discretion, Employee shall receive either a
              Forty-Five Thousand Dollar ($45,000.00) bonus (the “Bonus”
              herein) OR an offer to purchase a 20% membership interest in
              the Practice at the purchase price of Two Hundred Sixty-Seven
              Thousand Two Hundred Dollars ($267,200) (the
              “Membership Offer” herein) subject to adjustments as noted
              herein if Employee is still employed by Employer three years
              after the Effective Date of this Employment Agreement.

              ...

              The Bonus, if earned by Employee and opted for by Employer,
              shall be paid within 30 days following three years after the
              Effective Date.

(Emp. Agreement at 3.)

       {¶ 4} The Employment Agreement also contained a “Job Description” section that
stated Dr. Wooden “shall be scheduled for clinical duties 4 weekdays per week. In addition
to Employee’s weekday clinical duties, Employee shall also be scheduled to work as often
as every other Saturday.” (Emp. Agreement at 1.) The Employment Agreement established
Dr. Wooden’s base annual salary at $125,000 and required the Care Center to give Dr.
Wooden 90-days notice if her base salary was to be decreased by more than 5 percent.
       {¶ 5} In July 2021, Dr. Wooden was nearing the end of her pregnancy, and she
made a request to Dr. Carson to reduce her clinic days to three days per week and every
other Saturday. In a deposition, Dr. Wooden stated that she informed Dr. Carson she did
not want this request to affect her medical-directing duties, her ability to maintain health
insurance for her family, or a potential partnership offer. Dr. Wooden stated that Dr.
Carson agreed to the change in clinic days and that he did not think it would affect her
potential partnership. Dr. Wooden further stated it was her understanding that the switch
to three clinic days was not for a finite period of time, but “for good.” In his deposition, Dr.
Carson stated he did agree to the three clinic days a week change but, in briefing, he claims
that change was on a temporary basis, as an accommodation for Dr. Wooden toward the
end of her pregnancy.
No. 25AP-379                                                                               3


       {¶ 6} From August 1 to November 1, 2021, Dr. Wooden was on parental leave. On
September 1, 2021, while she was on parental leave, she reached three-years of employment
at the Care Center. However, the Care Center did not offer Dr. Wooden partnership on that
date, nor did it pay Dr. Wooden the $45,000 bonus within 30 days thereafter. Dr. Carson
stated in his deposition that he and Dr. Wooden had discussed extending the partnership-
offer discussion until she returned from parental leave, but that discussion was not
memorialized in writing.
       {¶ 7} In his deposition Dr. Carson also explained that he and the other partners
eventually met on December 3, 2021 to discuss Dr. Wooden and her possible partnership.
On December 7, 2021, Dr. Carson offered Dr. Wooden partnership, but also informed her
that in order to become a partner she would need to return to working four clinic days a
week as well as every other Saturday. Dr. Wooden did not immediately respond to the offer.
       {¶ 8} In January of 2022, the Care Center switched Dr. Wooden from the salary-
based compensation structure set out in the Employment Agreement to a commission-
based structure that included a five-percent bonus. Dr. Wooden claims this change resulted
in a 40 percent reduction in her pay and was done unilaterally and without 90-days notice.
       {¶ 9} On January 17, 2022, Dr. Wooden resigned by letter from the Care Center,
and informed the Care Center that her last day of employment would be April 16, 2022. On
March 28, 2022, however, Dr. Wooden did not show up for work, and she did not
subsequently return to work any day thereafter.
       {¶ 10} On May 17, 2022, Dr. Wooden filed a complaint in the Franklin County Court
of Common Pleas. In her complaint, Dr. Wooden alleged that the Care Center breached the
Employment Agreement by “fail[ing] to offer the membership interest in the practice or
pay the bonus by the three-year deadline set forth in the Employment Agreement.”
(May 17, 2022 Compl. at 2.) Dr. Wooden also argued that the Care Center was required to
give her 90 days notice to decrease her base salary unless she waived such notice in writing.
Dr. Wooden alleged that she did not waive the notice provision, that the Care Center
breached the Employment Agreement by unilaterally decreasing her base salary beginning
January 12, 2022. Dr. Wooden further alleged that the reduction in pay and unauthorized
deductions in her pay related to health insurance costs while she was on leave led to her
No. 25AP-379                                                                              4


constructive discharge. She also alleged violations of Ohio’s Prompt Pay Act and the
Pregnancy Discrimination Act.
       {¶ 11} On August 28, 2024, a magistrate issued a decision finding that Dr. Wooden
had failed to provide any credible evidence to support the claim of discrimination based on
her pregnancy, and rather that “Defendant had provided the Plaintiff with all the benefits
she was entitled to. The Defendant and the Plaintiff had agreed to a reduction of the work
days required to aid the Plaintiff during and after her pregnancy. Though the Plaintiff
suspected that her pregnancy had something to do with her eventual issues with the
Defendant, there just was no direct evidence to support the claim.” (Mag.’s Decision at 3.)
       {¶ 12} The magistrate further determined that, under the terms of the Employment
Agreement, the Care Center was required to provide either the bonus or a partnership offer
within 30 days of the end of the three-year contract period, i.e., October 1, 2021. The
magistrate found that Dr. Wooden was entitled to the $45,000 bonus, as neither an offer
of partnership nor the bonus was timely provided. The magistrate also stated that, even if
he had not held that the Care Center breached the agreement by not timely paying the
bonus or making a partnership offer, he “would still hold that the Defendant breached the
Agreement when it placed an additional clause into the partnership offer finally made by
the Defendant in December of 2021.” Id. at 10. The magistrate determined that it was “a
breach of the terms of the Agreement for the Defendant to condition the offer of partnership
on terms that were not clearly contained in the Agreement.” Id. at 12.
       {¶ 13} The magistrate also found that the Care Center violated the agreement by
changing Dr. Wooden’s salary. The magistrate found the Care Center’s statement that the
change of Dr. Wooden’s compensation to a commission-based structure was going to be
within the five-percent range authorized by the Employment Agreement lacked credibility.
The magistrate awarded $45,000 to Dr. Wooden for breach of the Employment Agreement
and a further $7,365 for the Care Center’s improper reduction of Dr. Wooden’s
compensation without the required 90-day notice.
       {¶ 14} On September 11, 2024, the Care Center filed numerous objections to the
magistrate’s factual findings as well as to how the magistrate weighed the evidence. The
Care Center also filed six objections to the magistrate’s legal conclusions and another
objection that the magistrate was improperly motivated by sympathy and bias.
No. 25AP-379                                                                                                        5


         {¶ 15} On March 5, 2025, the trial court overruled all of the Care Center’s objections
and adopted the magistrate’s decision. The Care Center now appeals.
II. ASSIGNMENTS OF ERROR
         {¶ 16} The Care Center asserts the following nine assignments of error.1
                  1. The trial court erred in overruling Defendant’s objections to
                  the findings of fact.

                  2. The trial court improperly applied an inapplicable contract
                  provision to find that Plaintiff was entitled to the $45,000
                  bonus.

                  3. The court’s decision does not account for the undisputed
                  and unequivocal testimony that Defendant cured its breach of
                  December 7, 2021.

                  4. The court’s decision inexplicably finds that the contract was
                  ambiguous. The contract was not ambiguous.

                  5. The magistrate improperly excluded evidence that could
                  have resolved the alleged ambiguity and improperly allowed
                  Plaintiff to create ambiguity with testimony about oral
                  modifications to the contract. The trial court improperly
                  overruled objections on that point.

                  6. The court was improperly motivated by sympathy and bias.

                  7. The court improperly applied the concept of pretext.

                  8. The court improperly cut off and rejected Dr. Ratliff’s
                  testimony on the calculation of damages.

                  9. The court failed to address Defendant’s counterclaim for
                  damages.

III. ANALYSIS

         {¶ 17} A trial court reviews a magistrate’s decision de novo, as required by Civ.R. 53.
Skorvanek v. Ohio Dept. of Rehab. & Corr., 2018-Ohio-3870, ¶ 24 (10th Dist.), citing Mayle
v. Ohio Dept. of Rehab. & Corr., 2010-Ohio-2774, ¶ 15 (10th Dist.). Further, in ruling on
objections to a magistrate’s decision, the trial court must undertake an independent review


1 We note that in its brief, appellant lists different assignments of error in its table of contents, in its statement

of assignments of error, and in the argument section of its brief. For clarity, the court considers the
assignments of error contained in the appellant’s argument section of its brief.
No. 25AP-379                                                                                 6


of the matters objected to in order “to ascertain [whether] the magistrate has properly
determined the factual issues and appropriately applied the law.” Id., citing Civ.R.
53(D)(4)(d).
       {¶ 18} We note that “an appellate court, however, reviews a trial court’s adoption of
a magistrate’s decision for an abuse of discretion.” (Emphasis added.) Id. at ¶ 25, citing
Mayle at ¶ 15. Claims of trial court error must be based on the actions taken by the trial
court itself, rather than on the magistrate’s findings. Mayle at ¶ 15. A trial court abuses its
discretion when it exercises its judgment in an unwarranted way regarding a matter over
which it has discretionary authority. Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35. The term
abuse of discretion, “ ‘commonly employed to justify an interference by a higher court with
the exercise of discretionary power by a lower court, implies not merely error of judgment,
but perversity of will, passion, prejudice, partiality, or moral delinquency.’ ” (Emphasis
deleted.) Id., quoting Black’s Law Dictionary (2d Ed. 1910). In other words, an abuse of
discretion “implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.”
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Therefore, we may reverse the trial
court’s adoption of the magistrate’s decision only if the trial court acted unreasonably,
arbitrarily, or unconscionably. Skorvanek at ¶ 25.
       A. Assignment of Error No. 1
       {¶ 19} In its first assignment of error, the Care Center argues that the trial court
erred in overruling the Care Center’s objections to the magistrate’s findings of fact. The
Care Center specifically takes issue with the magistrate’s findings regarding the hours that
Dr. Wooden averaged per week, the parties agreeing to modify Dr. Wooden’s work
schedule, Dr. Wooden’s testimony on the options Dr. Carson outlined to her in December
2021, as well as her change to a commission-based compensation structure, Dr. Carson’s
testimony where he agreed to modify Dr. Wooden’s work schedule in July 2021, and the
testimony of another Bindig, LLC partner about a meeting where the partners discussed
Dr. Wooden. However, on appeal, we must uphold a trial court’s factual determinations as
long as they are “ ‘supported by some competent, credible evidence.’ ” Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 80 (1984), quoting C.E. Morris Co. v. Foley Constr. Co., 54
Ohio St.2d 279 (1978), paragraph one of the syllabus. In applying this standard of review,
we “must presume the findings of the trier of fact are correct because it is best able to
No. 25AP-379                                                                                   7


observe the witnesses and use those observations in weighing the credibility of the
testimony.” Morris v. Ohio Dept. of Rehab. & Corr., 2021-Ohio-3803, ¶ 64 (10th Dist.),
quoting Watson v. Ohio Dept. of Rehab. & Corr., 2012-Ohio-1017, ¶ 31 (10th Dist.), citing
Seasons Coal Co. at 80. See also Sparre v. Ohio Dept. of Transp., 2013-Ohio-4153, ¶ 12
(10th Dist.).
       {¶ 20} Under its first assignment of error, the Care Center repeats many of the
objections it originally lodged against the magistrate’s decision, and which were ultimately
rejected by the trial court. We find no abuse of discretion by the trial court, as these findings
of fact are supported by some competent, credible evidence within the record, particularly
the Employment Agreement and the testimonies of Dr. Wooden, Dr. Carson, and other
partners at the Care Center. As stated above, we must uphold the trial court’s factual
determinations that are supported by competent, credible evidence. Nor will we substitute
a trial court’s findings of fact with our own, as the trier of fact, here the magistrate, is best
suited to determine the credibility of the testimony. We therefore overrule the Care
Center’s first assignment of error.
       B. Assignment of Error No. 2
       {¶ 21} The Care Center next argues that the trial court improperly applied
paragraph 7(A)(ii) of the Employment Agreement, to find that Dr. Wooden was entitled to
the $45,000 bonus. We do not agree.
       {¶ 22} Paragraph 7(A)(ii) of the Employment Agreement states:

                Should Employer terminate the employment of Employee
                without cause, then the Bonus will be prorated on a time basis
                and paid by Employer to Employee within 30 days of
                Employee’s final day of Employment.

       {¶ 23} The Care Center argues that, as Dr. Wooden was not terminated without
cause, this language is inapplicable to the facts at hand.            However, regardless of
termination, the structure of this provision indicates that the bonus was accrued over time.
We do not agree that the magistrate erred in considering this provision in his determination
that Dr. Wooden was entitled to the $45,000 bonus. In his decision, the magistrate
determined there was no credible evidence to show that the Care Center timely met its
obligation to offer partnership or give Dr. Wooden the $45,000 bonus, and there was no
credible evidence that Dr. Wooden waived this requirement. (Mag.’s Decision at 9.) The
No. 25AP-379                                                                              8


magistrate looked to paragraph 7(A)(ii) to determine that the parties intended the bonus to
accrue over the time that Dr. Wooden remained employed at the Care Center and that the
Employment Agreement “treated the bonus as an earned benefit.” (Emphasis added.) Id.
This further supports that Dr. Wooden was entitled to the $45,000 bonus when she did not
receive a timely offer of partnership on September 1, 2021.
       {¶ 24} Accordingly, we do not find that the trial court abused its discretion in
adopting this finding of the magistrate, and we overrule the Care Center’s second
assignment of error.
       C. Assignments of Error Nos. 3 and 4
       {¶ 25} As they are interrelated, we now consider the Care Center’s third and fourth
assignments of error together. In its third assignment of error, the Care Center argues that
the trial court erred in not “account[ing] for the undisputed and unequivocal testimony that
Defendant cured its breach on December 7, 2021.” (Appellant’s Brief at 29.) The Care
Center argues in its fourth assignment of error that the trial court erred in adopting the
magistrate’s finding that the Employment Agreement was ambiguous and that the
Employment Agreement dictated that the partnership offer was contingent on Dr. Wooden
working four days per week and every other Saturday.
       {¶ 26} Neither party disputes that the Care Center did not extend a partnership offer
by September 1, 2021 or the $45,000 bonus by October 1, 2021 to Dr. Wooden.
Nevertheless, the Care Center argues that it cured this breach by offering Dr. Wooden
partnership on December 7, 2021. The magistrate, however, disagreed finding that the Care
Center was still in breach of the contract because it placed an additional clause, working
four days per week, into the partnership offer. (Mag.’s Decision at 10.) The magistrate
stated, “it is acknowledged that the language and subparagraphs of Paragraph 7 do not have
any language noting how many days the Plaintiff was required to work if she accepted the
offer to become a partner.” Id. at 11.
       {¶ 27} Looking at the language of the Employment Agreement, paragraph 7, which
pertains to the partnership offer, we agree with the magistrate and the trial court’s
interpretation. Paragraph 7(B)(iv) states that upon accepting the partnership offer
“Employee shall continue to perform his or her job description.” Paragraph 7(B)(viii) of the
Employment Agreement also states that “Employee shall make a commitment to continue
No. 25AP-379                                                                                9


as a full time working member of the Practice.” (Emphasis added.) (Emp. Agreement at
9.) As she approached her three-year anniversary of employment, Dr. Wooden was
working in the clinic three weekdays per week, but there is no evidence that she was
working less than “full time.” Nowhere in paragraph 7, regarding the partnership offer,
does the Employment Agreement dictate the number of clinical days that Dr. Wooden
would need to work as a partner, only that she would make a commitment to work “full
time.” While the Employment Agreement does not define “full time,” the magistrate noted
that Dr. Wooden was able to maintain her “full time” employment status while working
three clinic days per week.
       {¶ 28} Furthermore, critical to the analysis of these issues, the magistrate found that
the parties orally modified the portion of the Employment Agreement detailing Dr.
Wooden’s work schedule in July 2021, despite the Employment Agreement containing a
provision dictating that modifications to the Employment Agreement shall be made in
writing. In RotoSolutions, Inc. v. Crane Plastics Siding, LLC, 2013-Ohio-4343 (10th Dist.),
this court reiterated that:
              “[A]n oral modification of a written contract can be enforceable
              notwithstanding a provision in the contract requiring
              modifications to be in writing where, as alleged here, the
              parties have engaged in a course of conduct in conformance
              with the oral modification and where the party seeking to
              enforce the oral modification would suffer injury if the
              modification were deemed invalid.” Exact Software North
              America, Inc. v. Infocon Sys., Inc., N.D.Ohio No. 3:03CV7183,
              2004 U.S. Dist. LEXIS 7580, 2004 WL 952876 at *5 (Apr. 16,
              2004).

              “[C]ourse of conduct can be considered in certain respects
              notwithstanding a ‘written changes only’ contractual provision,
              because the series of acts in question are evaluated only as
              evidence regarding a continuity of the purpose captured by the
              original contractual terms at the time of formation.” Lincoln
              Elec. Co. v. St. Paul Fire and Marine Ins. Co., 210 F.3d 672, 687
              (6th Cir.2000); Smaldino v. Larsick, 90 Ohio App.3d 691, 698,
              630 N.E.2d 408 (11th Dist.1993) (“A gratuitous oral agreement
              to modify a prior contract is binding if it is acted upon by the
              parties and if a refusal to enforce the modification would result
              in a fraud or injury to the promisee.”) (citing Restatement of
              Law 2d, Contracts, Section 241 (1981)); 200 West Apartments
              v. Foreman, 8th Dist. No. 66107, 1994 Ohio App. LEXIS 4081
              (Sept. 15, 1994) (noting that even contracts that are required by
No. 25AP-379                                                                             10


              the statute of frauds to be in writing can be modified orally
              when “the parties to the written agreement act upon the terms
              of the oral agreement”) (citing Nonamaker v. Amos, 73 Ohio
              St. 163, 76 N.E. 949, 3 Ohio L. Rep. 494 (1905); 51 Ohio
              Jurisprudence 3d, Statute of Frauds, Section 108. See also,
              Wells Fargo Bank, NA v. Smith, 11th Dist. No. 2010-T-0051,
              2012-Ohio-1672 (waiver of no-oral modification clause where
              opposing party’s subsequent admission or conduct evidenced
              its treatment of modification as operative).

RotoSolutions, Inc. at ¶ 19-20.

       {¶ 29} Paragraph 21 of the Employment Agreement, entitled “Complete
Agreement,” states:
              This Agreement represents the entire agreement and
              understanding between the parties as to the matters contained
              herein and it supersedes any and all agreements and
              representations made or dated prior thereto.

(Emp. Agreement at 7.)

       {¶ 30} However, the evidence in the record clearly indicates that the parties made
an oral modification to the Employment Agreement that was reflected in their course of
conduct. Dr. Wooden and Dr. Carson both testified that Dr. Wooden’s schedule was
reduced in July 2021 to working three weekdays per week. While the Care Center argues
that this was only an accommodation for Dr. Wooden’s pregnancy and not a permanent
change to Dr. Wooden’s schedule, the record indicates that even after her parental leave
concluded Dr. Wooden continued to work three clinic days per week.
       {¶ 31} The Care Center alternatively directs us to the Employment Agreement’s Job
Description section, which states that “Employee shall be scheduled for clinical duties 4
weekdays per week. In addition to Employee’s weekday clinical duties, Employee shall also
be scheduled to work as often as every other Saturday.” (Emp. Agreement at 1.) As we have
noted, however, the parties’ course of conduct indicates that this provision of the
Employment Agreement was modified.
       {¶ 32} It is under these circumstances that the magistrate found that the Care Center
inserted an additional requirement in its December 7, 2021 partnership offer to Dr.
Wooden, making the offer contingent on her working four clinic days per week. As the trial
court stated, the “magistrate properly determined that there had been an oral modification
No. 25AP-379                                                                                 11


to the employment agreement based on the parties’ course of conduct.” (Mar. 31, 2025
Decision at 4.) Therefore, as the magistrate found, “it was a breach of the terms of the
Agreement for the Defendant to condition the offer of partnership on terms that were not
clearly contained in the Agreement,” and therefore the Care Center did not cure its breach.
(Mag.’s Decision at 13.)
         {¶ 33} For these reasons, we overrule the Care Center’s third and fourth
assignments of error.
         D. Assignment of Error No. 5
         {¶ 34} The Care Center also argues that the magistrate erred by improperly
excluding evidence it offered to address the ambiguity of the partnership offer and the work
expectations of Dr. Wooden.
         {¶ 35} At trial, the Care Center offered an exhibit that the Care Center’s counsel
stated
                was a document that the practice gave to Dr. Wooden in the
                initial - - very initial stages of making her an employment offer.
                It preceded the employment offer.

                It’s not being produced to conflict or contradict anything in the
                employment agreement, but merely to set the record straight.
                [Dr. Wooden’s counsel] said repeatedly there’s just no other
                document that talks about the - - there’s just no way Dr.
                Wooden could have ever known what the -- what a partnership
                would look like, and this simply spells it out.

                The Magistrate: well, then I’m going to have to on parol
                evidence indicate that since these terms are not integrated into
                the final document, which is Exhibit 1, I have to exclude it
                because you’re -- you’re offering it to try explain the
                understanding of the parties, which has been written in Exhibit
                1 [the Employment Agreement].

(Aug. 27, 2024 Tr. Vol. II at 261-262.)

         {¶ 36} “The parol evidence rule is a rule of substantive law that prohibits a party who
has entered into a written contract from contradicting the terms of the contract with
evidence of alleged or actual agreements.” Ed Schory & Sons v. Soc. Natl. Bank, 1996-
Ohio-194, ¶ 28. The parol evidence rule states that “ ‘absent fraud, mistake or other
invalidating cause, the parties’ final written integration of their agreement may not be
No. 25AP-379                                                                                 12


varied, contradicted or supplemented by evidence of prior or contemporaneous oral
agreements, or prior written agreements.’ ” Galmish v. Cicchini, 90 Ohio St.3d 22, 27
(2000), quoting 11 Williston on Contracts (4th Ed. 1999) 569-570, Section 33:4. The
purpose of the parol evidence rule is to protect the integrity of written contracts. Id., citing
Ed Schory & Sons at 440. The rule seeks to ensure the stability, predictability, and
enforceability of finalized written instruments. “ ‘It reflects and implements the legal
preference, if not the talismanic legal primacy, historically given to writings. It effectuates
a presumption that a subsequent written contract is of a higher nature than earlier
statements, negotiations, or oral agreements by deeming those earlier expressions to be
merged into or superseded by the written document.’ ” (Footnotes omitted.) Id., quoting
11 Williston on Contracts at 541-548, Section 33:1.
       {¶ 37} The Care Center notes, without citation to legal authority in its brief, that in
the case of ambiguity in the terms of a contract, a trial court may allow other evidence that
may resolve the ambiguity. However, as we have discussed already in regards to the Care
Center’s third and fourth assignments of error, any ambiguity was resolved by the parties’
modification of the Employment Agreement. We therefore overrule the Care Center’s fifth
assignment of error.
       E. Assignment of Error No. 6
       {¶ 38} In its sixth assignment of error, the Care Center argues that the trial court
was improperly motivated by sympathy and bias.
       {¶ 39} “Judicial bias is a hostile feeling or spirit of ill will or undue friendship or
favoritism toward one of the litigants or his attorney, with the formation of a fixed
anticipatory judgment on the part of the judge, as contradistinguished from an open state
of mind which will be governed by the law and the facts.” (Internal quotations marks
deleted.) Karr v. Salido, 2024-Ohio-1141, ¶ 47 (10th Dist.), quoting State v. Dean, 2010-
Ohio-5070, ¶ 48, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463 (1956),
paragraph four of the syllabus.
       {¶ 40} “ ‘A judge is presumed not to be biased or prejudiced, and a party alleging
bias or prejudice must present evidence to overcome the presumption.’ ” Id. at ¶ 48,
quoting Wardeh v. Altabchi, 2004-Ohio-4423, ¶ 20 (10th Dist.). “ ‘The appearance of bias
or prejudice must be compelling to overcome this presumption of integrity.’ ” Fisher v.
No. 25AP-379                                                                               13


Univ. of Cincinnati Med. Ctr., 2015-Ohio-3592, ¶ 53 (10th Dist.), quoting Trott v. Trott,
2002-Ohio-1077, ¶ 18 (10th Dist.), citing In re Disqualification of Olivito, 74 Ohio St.3d
1261, 1263 (1994).
          {¶ 41} In its brief, the Care Center directs this court to testimony from Dr. Wooden
and her husband, as well as off-the-record statements made by the court expressing dislike
for the way the Employment Agreement was drafted as evidence of bias. However, we do
not agree that this rebuts the presumption of no bias or prejudice on the part of the trial
court. In the absence of further evidence supporting the Care Center’s allegations of bias
and sympathy, we must indulge the presumption of regularity of the proceedings.
Moreover, even if the trial court did make the purported statements alleged by the Care
Center, “judicial remarks during the course of [legal proceedings] that are critical or
disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge.” (Internal quotation marks deleted.) Karr at ¶ 50,
quoting State v. Dennison, 2013-Ohio-5535, ¶ 46 (10th Dist.), quoting Pratt at paragraph
four of the syllabus.
          {¶ 42} Therefore, we overrule the Care Center’s sixth assignment of error.
          F. Assignment of Error No. 7
          {¶ 43} The Care Center also argues that the trial court improperly applied the
concept of pretext in its decision. At trial, Dr. Wooden’s counsel argued that the Care
Center, in order to avoid paying the $45,000 bonus, made their partnership offer
contingent on increasing Dr. Wooden’s in-clinic work days, a condition they knew she likely
would not accept. Dr. Wooden made this argument based on an email from Dr. Sarah
Hayslip, one of the partners at Bindig, LLC, to the other partners wherein Dr. Hayslip
stated:
                 It seemed to me that there were rumblings of no partnership
                 offer fairly early on in the 3 year period –certainly before [Dr.
                 Wooden] became pregnant. It feels slimy to now say the offer
                 isn’t forthcoming because of her schedule reduction. If she
                 called your bluff and said she would go back to working her
                 former schedule, you still would not wish to offer partnership.
                 So while you tell her it’s all about her not wanting to do the
                 agreed upon schedule, it’s really not.

(Pl.’s Ex. I.)
No. 25AP-379                                                                              14


        {¶ 44} The Care Center argues that the concept of pretext is applicable to
employment discrimination cases and wholly inapplicable to a breach of contract case. The
Care Center states, “To the extent that the court’s decision was motivated by a finding of
pretext, it must be set aside.” (Appellant’s Brief at 45.) However, it is wholly unclear
whether the trial court was swayed by an improper or inapplicable factor. “A general
principal of appellate review is the presumption of regularity; that is, a trial court is
presumed to have followed the law unless the contrary is made to appear in the record.”
Tonti v. East Bank Condos., LLC, 2007-Ohio-6779, ¶ 26 citing Werts v. Werts, 2007-Ohio-
4279, ¶ 16 (9th Dist.). We do not find the presumption of regularity has been overcome
here.
        {¶ 45} As Dr. Wooden notes, the pretext arguments were made during counsel’s
closing arguments, wherein counsel is afforded broad latitude. Pang v. Minch, 53 Ohio
St.3d 186 (1990), paragraph two of the syllabus. Our examination of the record, the
magistrate’s decision, and the trial court’s adoption of that decision does not indicate that
the concept of pretext was a motivating factor in the trial court’s determination. We
accordingly overrule the Care Center’s seventh assignment of error.
        G. Assignment of Error No. 8
        {¶ 46} In its eighth assignment of error, the Care Center argues that the trial court
improperly rejected testimony from one of the Bindig, LLC partners, Dr. Eric Ratliff. In his
testimony, Dr. Ratliff discussed the reduction of Dr. Wooden’s compensation in
conjunction with the changes to her responsibilities in January 2021. The magistrate stated
in his decision that “[Dr.] Ratliff tried to claim that – as he calculated the numbers – the
new compensation scheme was in effect going to end up being within the 5% range. The
undersigned found that statement to lack credibility.” (Mag.’s Decision at 12-13.) The Care
Center argues that the trial court improperly discounted Dr. Ratliff’s testimony, with the
magistrate even indicating during Dr. Ratliff’s testimony that the magistrate did not need
to hear his calculations.
        {¶ 47} Dr. Ratliff testified that, in January 2021, the Care Center moved Dr. Wooden
from a salary to a commission-based compensation structure, and he also proffered that
Dr. Wooden’s job duties and time requirements were reduced. While the magistrate asked
questions during Dr. Ratliff’s testimony, the magistrate also allowed the Care Center to
No. 25AP-379                                                                                15


continue to ask questions to tease out a comparison of how much Dr. Wooden’s
compensation was reduced in comparison to the changes in her job duties. The magistrate
stated, “ask Dr. Ratliff whatever you want to ask him. I will listen to the answer and try to
figure it out.” (Aug. 27, 2024 Tr. Vol. II at 300.) Dr. Ratliff ultimately testified that the
difference in Dr. Wooden’s compensation, after accounting for the change in
compensation-structure and job responsibilities, was $3,549.48 at the beginning of 2021.
Id. at 302.
       {¶ 48} This court has found that “it is well within the scope of the trier of fact to
believe or disbelieve any testimony it chooses.” Sturgill v. Ohio Dept. of Rehab. & Corr.,
2004-Ohio-1735, ¶ 24 (10th Dist.). The trial court is “free to disbelieve any or all of the
testimony as it desire[s].” Id. Such is the case here; the magistrate was free to disbelieve
any or all of Dr. Ratliff’s testimony, and we therefore overrule the Care Center’s eighth
assignment of error.
       H. Assignment of Error No. 9
       {¶ 49} In its final assignment of error, the Care Center argues that the trial court
erred by not addressing its counterclaim for damages. The Care Center directs this court
to paragraphs 15 and 16 of the Employment Agreement, which required Dr. Wooden to
provide 90-days notice prior to her departure or to pay damages in the amount of $100 per
day. The Care Center claims that Dr. Wooden “fell short by 23 days, resulting in $2300 in
liquidated damages to Defendant on its counterclaim.” (Appellant’s Brief at 49.) We do
not agree.
       {¶ 50} “It is well-established that a ‘material breach of contract by one party
generally discharges the non-breaching party from performance of the contract.’ ” Nious v.
Griffin Const., Inc., 2004-Ohio-4103, ¶ 16 (10th Dist.), citing Sun Design Sys., Inc. v. Tirey,
1996 Ohio App. LEXIS 1524, *7 (2d Dist. Apr. 19, 1996). In his decision, the magistrate
stated, “Given that the Defendant materially breached the Agreement the Defendant
cannot hold the Plaintiff to the liquidated damages clause that was triggered by the Plaintiff
not remaining for the complete 90 days triggered by her resignation.” (Emphasis added.)
(Mag.’s Decision at 13.) We therefore overrule the Care Center’s ninth assignment of error.
No. 25AP-379                                                                               16


IV. CONCLUSION
       {¶ 51} Having overruled all nine of the Care Center’s assignments of error, we affirm
the judgment of the Franklin County Court of Common Pleas.
                                                                         Judgment affirmed.
                                 DINGUS, J., concurs.
                    JAMISON, J., concurs in part and dissents in part.



JAMISON, J., concurring in part and dissenting in part.


       {¶ 52} Because I would find that the trial court erred in ruling that appellant did not
cure its breach of contract, I respectfully concur in part and dissent in part.
       {¶ 53} Critical to both the trial court and majority decisions is the finding that the
parties orally modified the Employment Agreement to reduce appellee’s in-office clinical
duties from four days per week to three days per week. In support of this finding, both the
majority and the trial court cite RotoSolutions, Inc. v. Crane Plastics Siding, L.L.C., 2013-
Ohio-4343 (10th Dist.). However, that case is procedurally distinguishable from this
matter.   In RotoSolutions, Inc., this court simply held that the plaintiff’s amended
complaint sufficiently pled a valid modification. Id. at ¶ 21. We did not hold that there was
in fact a valid modification. I believe that the evidence here fails to support a finding that
the parties orally modified their contract via a course of conduct. The undisputed evidence
established that appellee’s in-office days were reduced for only one month before and one
month after her maternity leave. That is insufficient to establish a course of conduct that
alters an explicit contract term. See St. Marys v. Auglaize Cty. Bd. of Commrs., 2007-Ohio-
5026, ¶ 46 (oral modification of a contract demonstrated by parties’ conduct “over a period
of years”). This is especially so considering this accommodation occurred for two months
at the tail-end of a three-year contract.
       {¶ 54} It should also be pointed out that the trial court’s decision in this regard is
inconsistent with its finding that appellee did not waive the deadline by which appellant
had to pay the bonus or offer her membership. There was testimony that the parties had
agreed to table these discussions until appellee returned from maternity leave. There was
no evidence that appellee was inquiring about her bonus or membership offer in the days
No. 25AP-379                                                                                 17


and weeks after September 1, 2021. If two months of reduced days in the office is a
sufficient course of conduct to orally modify a contract, it stands to reason that the parties’
course of conduct also orally modified the date by which appellant was required to pay a
bonus or offer membership. It cannot be had both ways. Either both contract terms were
validly modified, or neither were validly modified.         I would submit that there was
insufficient evidence to prove that either term was validly modified.
       {¶ 55} Even if I were to believe the contract was validly modified, the job description
in the agreement has nothing to do with the offer of membership. The job description and
membership offer provisions are in separately identified sections of the contract. Indeed,
in paragraph 7(B)(iv) of the agreement, it states “Employee shall continue to perform his
or her job description . . . until Employee becomes a Member of the Practice.” (Employment
Agreement at 4.) It is the appellee’s job description that dictates, not for her potential
membership. Thus, by the agreement’s own explicit terms, the job description contained
therein was no longer valid as soon as appellee became a member. Thus, using that job
description to rule in appellee’s favor was incorrect.
       {¶ 56} Simply put, appellant cured its breach of the employment agreement.
Appellant offered her membership in the practice. Appellee simply chose not to accept
because she did not like the terms of the offer. The fact that the offer included a
requirement that appellee work four days per week again is irrelevant. The plain language
of the contract contemplated additional unspecified terms of the membership offer.
Paragraph 7(B)(iii) states, “[s]hould Employee accept the Membership Offer, both
Employer and Employee shall work to prepare an acceptable new Operating Agreement as
well as any other needed documents to facilitate Employee’s membership in the Practice,
including, if applicable, financing documents, effective January 1, 2022.” (Employment
Agreement at 4.) It was contemplated by the language of the agreement that there would
be additional terms to appellant’s membership offer. It was never contemplated that
appellee would control the terms of her membership. Appellant is not liable simply because
appellee and appellant could not negotiate mutually agreeable terms.
       {¶ 57} It could be argued that allowing appellant to dictate, at its sole discretion, the
terms of the membership offer is an illusory contract. “A contract is illusory when by its
terms the promisor retains an unlimited right to determine the nature or extent of his
No. 25AP-379                                                                                 18


performance; the unlimited right, in effect, destroys his promise and thus makes it merely
illusory.” Imbrogno v. MIMRx.com, Inc., 2003-Ohio-6108, ¶ 8 (10th Dist.). Indeed, we
have previously found an employee incentive plan to be an illusory contract where it was
entirely within the employer’s discretion whether to award bonuses and in what amount.
Pohmer v. JPMorgan Chase Bank, N.A., 2015-Ohio-1229, ¶ 24-25 (10th Dist.). However,
we also stated, albeit in dicta, that those types of incentive plans would not be illusory under
all circumstances. Id. at ¶ 25. In cases, such as this one, where the employee is made aware
of the terms of those plans, and assents to those terms in exchange for continued
employment, such plans are not illusory contracts. Id.
       {¶ 58} Because I would conclude that the trial court abused its discretion in adopting
the magistrate’s finding that appellant failed to cure its breach of appellee’s employment
agreement, I would sustain appellant’s third assignment of error.
       {¶ 59} For these reasons, I respectfully concur in part and dissent in part.
                                  ______________________