COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61152 LUSTIG PRO SPORTS ENTERPRISES, INC.: : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION JAMES EDWARD KELLY, et al : : Defendant-appellants : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 10, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 168,339 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: KENT B. SCHNEIDER Attorney at Law 1301 East Ninth Street Cleveland, Ohio 44114 For defendant-appellants: DOUGLAS J. PAUL FRED N. CARMEN Attorneys at Law 6200 Rockside Road Cleveland, Ohio 44131 - 1 - FRANCIS E. SWEENEY, P.J.: Defendants-appellants, James Edward Kelly, et al., timely appeal the trial court's judgment entered in favor of appellee, Lustig Pro Sports Enterprises, Inc. (hereinafter "LPS"), in the amount of $71,400 on their complaint alleging that appellant James Kelly owed appellee three percent commissions for the 1989- 90 and 1990-91 seasons under a negotiations contract entered into between appellants and appellee. For the reasons set forth below, we affirm the judgment of the trial court. The pertinent testimony adduced at the bench trial is as fol-lows: Gregory J. Lustig, a principal of Lustig Pro Sports (LPS), testified that Jim Kelly entered into a negotiation contract with LPS on March 14, 1983, under which LPS was to receive three per- cent of any salary and bonuses to be earned by Jim Kelly as a result of a player contract to be negotiated by LPS. At that time, Jim Kelly also entered into a financial services contract with a separate but related company known as Consultants Develop- ment Group (hereinafter "CDG"). Under the financial services contract, CDG was to receive annually two percent of the player's gross income for the year or ten thousand dollars, whichever was less, for financial services to be rendered to Jim Kelly in the form of money management, investment advising, and tax planning. - 2 - In 1983, LPS negotiated a five-year contract between Jim Kelly and the Houston Gamblers of the USFL for a total compensa- tion package of $3,150,000.00. The contract called for $1 mil- lion signing bonus and an annual salary starting at $275,000 and ex-tending to $650,000 the fifth year. The Houston Gamblers could not fund the signing bonus up front and, thus, paid Mr. Kelly two hundred thousand dollars in cash, guaranteed a bank loan taken by Mr. Kelly for five hundred thousand dollars, and agreed to pay Mr. Kelly annual installments of one hundred sixty thousand dollars to offset the loan repayments. In 1986, after Mr. Kelly had received all but the last two annual installment payments, the Houston Gamblers and the entire USFL folded. LPS then negotiated a five-year contract for the years 1986 to 1990 for Mr. Kelly with the Buffalo Bills of the NFL. During these years, the financial services contract was also in effect between CDG and Mr. Kelly. In 1984, CDG and Mr. Kelly mutually agreed that instead of compensating CDG at the contract rate of the lesser of two percent or ten thousand dollars, Mr. Kelly would be billed at a flat rate of ten thousand dollars per year. In 1986, the contract was orally modified again. CDG agreed to continue to provide financial services to Mr. Kelly only if he would agree to change the compensation to a flat two percent of his gross annual income. Mr. Lustig testified that the modification was necessary in that the type of services they were get-ting into in dealing with the NFL far exceeded the scope - 3 - of the contract and that other players were being charged two percent for financial services. Mr. Kelly agreed to modify the fee to a flat two percent of his gross annual income. For the years 1986, 1987 and 1988, Mr. Kelly paid the com- bined flat five percent, under the negotiation contract and financial services contract, without protest. In 1988, Mr. Kelly terminated the contracts with LPS and CDG. Under the terms of the negotiation contract, LPS was entitled to receive payment of its three percent commission on Mr. Kelly's compensa- tion for the 1989-90 and 1990-91 seasons, which amounted to eighty-one thousand dollars in commissions. It is undisputed that Mr. Kelly has refused to pay the amounts owed for 1989 and 1990. This refusal to pay the amounts owed resulted in the filing of the appellee's complaint in this case. Daniel Kelly, president of Jim Kelly Enterprises and Jim's younger brother, testified as a defense to payment under the nego-tiation contract that Jim Kelly was entitled to a set-off of sums paid in excess of the amount owed. Dan Kelly testified that from 1983 to 1988, a total of $328,635 in commissions was paid, a sum which exceeded three percent of Jim Kelly's income for those years by $118,875.00. Dan Kelly testified that the excess sums represented over-billings by LPS. However, on cross-examination, it was revealed that Mr. Kelly did not figure into that alleged over-payment that an additional two percent of that total amount - 4 - of commissions paid represented sums paid under the financial services agreement. Based upon the above, the trial court granted judgment in favor of appellee on its complaint in the amount of $71,400.00. Appellants now timely appeal, raising four assignments of error for our review. ASSIGNMENT OF ERROR I THE TRIAL COURT ERRED IN AWARDING APPELLEE ANY SUM, IN LIGHT OF THE UNDISPUTED EVIDENCE THAT APPELLANT HAD FULLY COMPENSATED APPELLEE FOR ITS SERVICES. ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED IN CONSIDERING OR FIND- ING A MODIFICATION OF THE FINANCIAL SERVICES AGREEMENT. In Assignments of Error I and II, appellants argue that the trial court's judgment was not supported by sufficient evidence. Specifically, appellants contend that (1) insufficient evidence existed to support that the financial services contract was oral- ly modified to a flat commission rate of two percent of Mr. Kell- y's gross annual income and (2) the evidence demonstrated that the amount owed in commissions for the 1989-90 and 1990-91 sea- sons was offset by overpayments made to LPS during prior years. These arguments are without merit. Judgments supported by some competent, credible evidence go- ing to all the essential elements of the case will not be re- versed by a reviewing court as being against the manifest weight - 5 - of the evidence. C. E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. We will make every reasonable pre- sumption in favor of the trial court's judgments. Seasons Coal Co. v. Cleve-land (1984), 10 Ohio St.3d 77. Furthermore, the weight to be given the evidence and witness credibility are pri- marily for the factfinder. Shore Shirley & Co. v. Kelly (1988), 40 Ohio App.3d 10. In the present case, we find that the testimony of Greg Lustig that appellants orally agreed to a modification of the financial services contract in 1986 to a flat two percent commis- sion provided the trial court with sufficient evidence to con- clude that an oral modification of the contract took place. Consistent with that agreement, the evidence demonstrates that from 1986 to 1988, appellants were charged and willingly paid the flat two per-cent commission under the financial services con- tract. Thus, suf-ficient evidence exists to support performance by the parties of the oral modification. Furthermore, we find that appellants failed to provide suf- ficient evidence of overpayments to support their defense that they were entitled to a set-off of the amounts owed appellee for the 1989-90 and 1990-91 seasons. On cross-examination, Dan Kelly admitted that what he considered overpayments of commission to appellee were possible commissions owed under the financial ser- vices contract with CDG. Therefore, the trial court did not err in concluding that appellants failed to prove that they were - 6 - overcharged and, thus, entitled to a set-off of amounts owed to appellee under the negotiation contract. Assignments of Error I and II are overruled. ASSIGNMENT OF ERROR III THE TRIAL COURT ERRED IN FAILING TO FIND THAT APPELLEE'S CONDUCT MATERIALLY BREACHED THE COMMISSION AGREEMENT THEREBY RELIEVING APPEL- LANTS OF THEIR OBLIGATIONS THEREUNDER. Appellants argue that the trial court, in concluding that appellee was not entitled to a commission on Mr. Kelly's bonus payments for the years 1984-85 and 1985-86, should have made a further finding that appellee materially breached the negotiation contract by receiving commissions for those years. Based on this material breach, appellants contend they had a right to rescind the contract. This argument is not well taken. An appellate court need not consider a question not pre- sented, considered or decided by a lower court. Hungler v. Cin- cinnati (1986), 25 Ohio St.3d 338. Appellants did not seek the remedy of rescission for appellee's alleged breach of contract at the trial court level and, therefore, are barred from raising it for the first time on this appeal. Assignment of Error III is not well taken and is overruled. - 7 - ASSIGNMENT OF ERROR IV THE TRIAL COURT ERRED IN PROCEEDING WITH TRIAL AFTER A PARTY PLAINTIFF AND KEY TRIAL WITNESS FOR APPELLANTS WAS SPIRITED OUT OF COURT TO DEPRIVE APPELLANT OF THE OPPORTUNITY TO EXAMINE HIM. Appellants argue that the trial court erred in failing to continue the trial until appellants could secure a witness, Ar- nold Faigin, former principal of LPS. This argument is not well taken. Appellants did not make a motion for continuance of the trial and, therefore, cannot now raise said error for the first time on appeal. Hungler, supra. Accordingly, Assignment of Error IV is not well taken and is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellants its costs herein taxed. The Court finds there were reasonable grounds for this ap- peal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. HARPER, J. KRUPANSKY, J. CONCUR PRESIDING JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .