DeGood Dimensional Concepts, Inc. v. John D. Wilder

FILED
Nov 12 2019, 8:33 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Robert Owen Vegeler Ronald E. Weldy
Fort Wayne, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DeGood Dimensional Concepts, November 12, 2019
Inc., Court of Appeals Case No.
19A-PL-141
Appellant-Defendant, Cross-Appellee,
Appeal from the Kosciusko Circuit
v. Court
The Honorable Michael W. Reed,
John D. Wilder, Judge
Trial Court Cause No.
Appellee-Plaintiff, Cross-Appellant.
43C01-1103-PL-27
Altice, Judge.
Case Summary
[1] DeGood Dimensional Concepts, Inc. (DeGood), appeals the trial court’s judgment
in favor of its former employee, John D. Wilder, for unpaid sales commissions and
attorney’s fees. Wilder cross-appeals, claiming that the trial court erred in not
awarding him amounts for unpaid wages, additional commissions, liquidated
damages, attorney’s fees, and pre-judgment interest and costs.
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 1 of 23
[2] We affirm in part, reverse in part, and remand with instructions.
Facts & Procedural History
[3] DeGood is a corporation in North Webster that manufactures and sells small
orthopedic medical devices. The corporation is operated by Scott DeGood and his
wife, Mary. Wilder had worked in sales and marketing with various businesses
over the years, including other medical device companies.
[4] At some point, Wilder approached the DeGoods about working for them in the
sales division. After some negotiation, Wilder drafted an employment agreement
(First Agreement) in December 2008. This contract provided that Wilder would
earn an annual base salary of $50,000 to be paid on a bi-weekly basis with ten days
of paid vacation the first year, fifteen days the second year, and twenty days every
year thereafter.
[5] Wilder would also be paid a two percent commission on sales of pre-existing
product sales from $1 million to $2 million, along with a two percent commission
on sales of new products up to $2 million. This payment schedule was attached to
the First Agreement. Wilder was to work exclusively for DeGood from his
residence at least forty hours per week, plus travel as required. The First
Agreement further provided that Wilder would report to the plant in North
Webster for a minimum of six hours every two to three weeks. Wilder was
obligated to copy DeGood on emails, abide by the rules set forth in the employee
handbook that Wilder received and acknowledged, report all sales activities and
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 2 of 23
provide those records to DeGood, and maintain a call log. In the event of
termination or resignation, a one-month notice was required and full compensation
was to be paid during that period. Both parties signed the First Agreement, and
Wilder was to commence employment on December 15, 2008. However, the
parties subsequently agreed to a January 1, 2009 start date. The date was again
mutually changed to January 15.
[6] DeGood sustained a substantial decline in product sales during the last half of
2009. As a result, all of its employees’ hours were reduced for a six-month period.
Additionally, both parties agreed that Wilder’s salary would be reduced by 25%
from July 20, 2009, through March 12, 2010.
[7] On August 1, 2010, the parties entered into a second employment agreement
(Second Agreement) that provided for a $5000 increase in Wilder’s salary. This
contract was designed, among other things, to clarify some of the terms and rules
that Wilder had not been following under the First Agreement. The Second
Agreement also provided that termination/resignation notice was to be three
months, and “all forms of compensation [were to be included] during this period.”
Appellant’s Appendix Vol. II at 111-12.
[8] The DeGoods conducted periodic performance reviews throughout Wilder’s
employment, including one on September 8, 2010, that culminated in an overall
negative review of Wilder’s work performance. All reviews had detailed Wilder’s
numerous violations of known and stated rules that were set forth in the employee
handbook, including the prohibition against working for other companies, taking
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 3 of 23
extended breaks, and working many less hours than what had been agreed upon.
More specifically, Wilder had been incommunicative with the DeGoods for several
months after commencing employment, and he did not meet with any customers
from January 15, 2009, until April 2009. Wilder only made two trips to the plant
during the first six months of 2009, failed to send sales reports, or copy DeGood on
emails. Mary told Wilder at the September 8 meeting that he would be terminated
in three months if his performance did not improve. The DeGoods and Wilder
acknowledged and signed each review.
[9] On September 13, 2010, Wilder emailed Mary, stating, “I will assume that on
9/8/2010, I received my 90 day notice for termination. If this is the case, how
would you like to proceed?” Exhibits Vol. IV at 1. Mary’s email response that
same day provided:
It was just as we presented it to you, as a Formal Warning (not
termination) from your employer that your job is in jeopardy,
why it is in jeopardy, and what our expectations as your
employer are in moving forward to resolve any and all the
problems discussed. We DID NOT give you a termination
notice, and also stated that was NOT our intentions [sic] during
the meeting as well. We did state that we wanted to work this
out with you and hopefully have you working with the company
for years to come.
Id. (Emphases in original). The response went on to state that
[b]ecause you have ignored numerous previous verbal warnings
and e-mails, a written warning was presented to you that you
now are on probation for 3 months, and will show us in those 3
months that you are willing to perform your job following the
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 4 of 23
guidelines in the report that was given to you, and also discussed
thoroughly during the meeting.
Id. at 6. The following day, Wilder emailed Mary again, stating, “No
Termination notice regarding our agreement dated 2010. Your intention is not
to terminate our agreement. Purpose for your summary & our discussions
(“Employee Performance Review”) was to clarify areas of improvement & to
make sure employer expectations were clear.” Id. at 6.
[10] On December 6, 2010, Wilder emailed Mary explaining that he would be out for a
half day because his back was “giving [him] trouble.” Id. at 135. Later that
afternoon, Mary responded as follows: “The amount of work that you have
missed in the last couple of weeks on top of all the previous problems that have
been addressed regarding your absenteeism is completely out of control and I must
present a final warning that it [sic] not going to be continued to be [sic] tolerated!”
Id. (Emphasis added).
[11] Another Performance Notification (Notification), bearing a handwritten notation
that Wilder’s employment with DeGood was being terminated, was issued to
Wilder on January 5, 2011. The Notification detailed numerous policy violations
that Wilder had committed throughout the course of his employment. Three prior
formal written warnings were documented in the Notification, which stated that
“[t]he employee has ‘Willfully Neglected’ the position of the Sales VP and terms
stated in his employment contract, along with the disregard of previously stated
warnings and the below performance notifications that the employee already has
received to date.” Appellant’s Appendix Vol. II at 133. The Notification stated that
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 5 of 23
Wilder had continued to bring in company reps not associated with DeGood after
he was told to cease such behavior. DeGood also asserted that Wilder had
misused the company telephone and used the business’s ATM card for
unauthorized personal situations.
[12] DeGood observed in the Notification that “John Wilder was formally put on a 3
month PROBATION and was given notification in writing regarding the probation
with all issues outlined on 9/8/10 which the employee acknowledged and signed
and was given copies.” Id. DeGood also made it clear in the Notification that
[Wilder] was notified with a detailed summary, that he was in
bre[ach] of his employment contract and that the employee owed
the company monies from being overpaid for hours that the
employee had not worked and that the amount owed to company
would be zeroed out and any new compensation for commissions
would start over at the end of the 3 month probation with the
understanding the employee needed to make a serious dedicated effort in
resolving all the problems that were noted.
The needed effort needed by the employee was not achieved
during this 3 month Probation. . . .
Id. (Emphasis added).
[13] Wilder filed a complaint against DeGood on March 14, 2011, for unpaid salary,
commissions, vacation and sick time, and bonuses. DeGood counterclaimed for
damages and injunctive relief. DeGood claimed, inter alia, that it had acted in
good faith in not paying Wilder a portion of the commissions, and that it could not
be held liable for unpaid wages, attorney’s fees, court costs, or liquidated damages.
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 6 of 23
DeGood also alleged that Wilder had committed civil theft because he had taken
excessive unauthorized time off and had not worked the minimum forty-hour week
required under the First and Second Agreements.
[14] Following a bench trial on August 22, 2018, the trial court entered its judgment,
finding that Wilder failed to prove that DeGood had committed material breaches
of either Agreement, inasmuch as both parties had agreed to modify the
Agreements in light of their conduct during the course of Wilder’s employment. It
determined that Wilder failed to show that he had not been paid his full salary
during the employment period. The trial court also found that Wilder had made a
valid claim for unpaid commissions under the First Agreement in accordance with
the Wage Claim Statute 1 for $9287.48. However, the trial court denied Wilder’s
request for liquidated damages under the Wage Claim Statute in light of the
parties’ modifications of both Agreements, their bona fide disputes throughout the
course of the employment period, and the lack of evidence that DeGood had acted
in bad faith in withholding the commissions. The trial court also ordered DeGood
to pay the costs of the action and Wilder’s attorney’s fees in the amount of $15,250
pursuant to the Wage Claim Statute. With regard to DeGood’s counterclaims, the
trial court determined that DeGood failed to prove that it had overpaid Wilder’s
salary and that it was not entitled to damages against Wilder on its claim that
Wilder had stolen any wages. In the end, the trial court entered judgment for
1
Ind. Code § 22-2-5-1.
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 7 of 23
Wilder in the amount of $24,537.48, together with statutory interest. 2 However,
the final judgment stated that court costs were assessed against Wilder.
[15] DeGood appeals, claiming that the judgment must be set aside because it: 1) never
agreed to modify the Agreements and that Wilder was the first to breach both
Agreements; 2) cannot be liable for damages under the Wage Claim Statute
because Wilder did not follow the proper procedures in pursuing his claims against
it; 3) has established that commissions are not wages within the meaning of I.C. §
22-2-5-2; 4) is not liable for liquidated damages because it did not act in bad faith in
withholding those commissions or alleged unpaid salary amounts; 5) established
the evidence was insufficient to support the commission award; and 6) was entitled
to attorney’s fees and damages against Wilder for civil theft because Wilder’s
conduct throughout the course of his employment constituted “theft of labor.”
Appellant’s Brief at 33.
[16] Wilder cross-appeals, claiming that he is entitled to: 1) amounts for underpaid and
unpaid wages; 2) liquidated damages under the Wage Claim Statute; and 3) pre-
judgment interest and costs.
Discussion and Decision
2
The trial court amended its final order and judgment on December 19, 2018 (Amended Final Order),
stating that a letter from the Office of the Attorney General had authorized Wilder’s counsel to pursue wage
claims against DeGood under I.C. § 22-2-9-2. The amended order also noted that the Wage Claim Statute
provides for the payment of reasonable attorney’s fees and costs and recovery of twice the amount of the
unpaid wages as liquidated damages if the employer failed to act in good faith in the nonpayment of wages.
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 8 of 23
I. Standard of Review
[17] On appeal, the findings and conclusions made by the trial court are to be liberally
construed to support the judgment. In re Paternity of J.A.C., 734 N.E.2d 1057, 1059
(Ind. Ct. App. 2000). They will not be overturned unless they are clearly
erroneous. Lucero v. Lutheran Univ. Ass’n, 621 N.E.2d 660, 664 (Ind. Ct. App.
1993). Findings are clearly erroneous only when the record contains no facts to
support them either directly or by inference. Jones v. Von Hollow Ass’n, Inc., 103
N.E.3d 667, 671 (Ind. Ct. App. 2018). A judgment is clearly erroneous if it applies
the wrong legal standard to properly found facts. Id. In determining whether the
findings or judgment are clearly erroneous, we do not reweigh the evidence and
consider only the evidence favorable to the judgment and all reasonable inferences
flowing therefrom. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999). We evaluate
questions of law de novo and owe no deference to a trial court’s determination of
such questions. Jones, 103 N.E.3d at 671.
[18] As for Wilder’s cross-appeal, we note that he is appealing from a negative
judgment. A judgment entered against a party who bore the burden of proof at
trial is a negative judgment. Stoffel v. JPMorgan Chase Bank, 3 N.E.3d 548, 552
(Ind. Ct. App. 2014). On appeal, we will not reverse a negative judgment unless it
is contrary to law. Id. To determine whether a judgment is contrary to law, we
consider the evidence in the light most favorable to the cross-appellee, together
with all the reasonable inferences to be drawn therefrom. Id. at 553. A party
appealing from a negative judgment must show that the evidence points unerringly
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 9 of 23
to a conclusion different than that reached by the trial court. Smith v. Dermatology
Assoc., 977 N.E.2d 1, 4 (Ind. Ct. App. 2012).
II. DeGood’s Claims
A. Modification and Enforcement of the Agreements
[19] DeGood argues that the trial court erred in finding that it had modified either
Agreement. DeGood maintains that there was a lack of evidence of any
modification and that it never acquiesced in, or waived, any of the Agreements’
material terms. DeGood asserts that, “at best, it tolerated Wilder’s non-
compliance” with the Agreements. Reply Brief of Appellant/Cross-Appellee at 15.
Therefore, DeGood contends that because there was no modification, and Wilder
was the first to breach the Agreements by failing to follow their express terms,
Wilder was precluded from enforcing the Agreements.
[20] DeGood correctly posits that the first party to breach a contract may not enforce its
terms. Steve Silveus Ins., Inc. v. Goshert, 873 N.E.2d 165, 182 (Ind. Ct. App. 2007).
However, the evidence at trial showed that both parties consented to a
modification of the employment contracts, inasmuch as they agreed to Wilder’s
start date that differed from that stated in the First Agreement. Indeed, while the
First Agreement provided that Wilder was to commence employment on
December 15, 2008, both DeGood and Wilder subsequently agreed to a different
start date of January 1, 2009. Wilder then sought to arrive at the plant on January
2, but that date did not materialize. Thereafter, Wilder suffered a back injury in an
automobile accident on January 15 and sought ongoing medical treatment that
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 10 of 23
resulted in an agreed-upon modified work schedule. The evidence further
established that the parties agreed to a reduction in Wilder’s salary from the latter
part of July 2009 through March 12, 2010. In light of this evidence, we cannot say
that the trial court’s finding of an agreed modification was clearly erroneous.
Thus, neither party was precluded from enforcing the terms of the Agreements
against the other, and DeGood’s contention that Wilder was foreclosed from
initiating a cause of action against it fails.
B. Commissions Owed
1. Wilder’s Alleged Failure to Follow Proper Procedure Under the Wage Claim
Statute
[21] It appears that DeGood is claiming that the judgment must be reversed because
Wilder failed to follow the procedures outlined in the Wage Claim Statute. As a
result, DeGood maintains that Wilder was barred from recovering costs, attorney’s
fees, or liquidated damages for which the Wage Claim Statute provides in certain
circumstances.
[22] In resolving this issue, we initially observe that the Wage Claim Statute provides:
(a) Every . . . corporation . . . doing business in Indiana, shall pay
each employee at least semimonthly or biweekly, if requested, the
amount due the employee. The payment shall be made in lawful
money of the United States. . . . Any contract in violation of this
subsection is void.
(b) Payment shall be made for all wages earned to a date not
more than ten (10) business days prior to the date of payment. . .
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 11 of 23
I.C. § 22-2-5-1. A companion statute, I.C. § 22-2-5-2, defines the damages that
are recoverable when proceeding under the Wage Claim Statute:
Every such person, firm, corporation, limited liability company,
or association who shall fail to make payment of wages to any
such employee as provided in section 1 of this chapter shall be
liable to the employee for the amount of unpaid wages, and the
amount may be recovered in any court having jurisdiction of a
suit to recover the amount due to the employee. The court shall
order as costs in the case a reasonable fee for the plaintiff’s
attorney and court costs. In addition, if the court in any such suit
determines that the . . . corporation that failed to pay the employee as
provided in section 1 of this chapter was not acting in good faith, the
court shall order, as liquidated damages for the failure to pay wages, that
the employee be paid an amount equal to two (2) times the amount of
wages due the employee.
(Emphasis added). Furthermore, I.C. § 22-2-9-4(b) sets forth the procedures
that a claimant must follow to recover the damages under the Wage Claim
Statute:
The commissioner of labor may refer claims for wages under this
chapter to the attorney general, and the attorney general may
initiate civil actions on behalf of the claimant or may refer the claim
to any attorney admitted to the practice of law in Indiana. The
provisions of IC 22-2-5-2 apply to civil actions initiated under this
subsection by the attorney general or his designee.
(Emphasis supplied).
[23] Contrary to DeGood’s assertions, the trial court specifically determined in its
Amended Final Order and Judgment (Amended Order) that Wilder had complied
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 12 of 23
with the procedures set forth in I.C. 22-2-9-4(b) in pursuing his claims. The trial
court also pointed out that this declaration in the Amended Order had no effect
upon the substance of the original judgment. Thus, DeGood’s claim that Wilder
failed to follow the proper procedures under the Wage Claim Statute fails.
2. “Commissions” vs. “Wages”
[24] DeGood argues for the first time on appeal that Wilder is barred from recovering
any unpaid commissions because “commissions” are not “wages” within the
meaning of the Wage Claim Statute. Time and again, this court has held that a
party may not raise an issue on appeal if it was not raised at the trial court level.
KOA Properties, LLC v. Matheison, 984 N.E.2d 1255, 1258 (Ind. Ct. App. 2013).
The record reflects that DeGood not only failed to argue at the trial court level that
commissions do not qualify as wages under the Wage Claim Statute, but it also
conceded as much. Specifically, DeGood commented in its trial brief that
‘“commissions’ are ‘wages’ under I.C. § 22-2-5, but only if pursued through I.C. §
22-2-9.” Appellant’s App. at 36, 38. Thus, DeGood is foreclosed from raising this
issue for our review.
3. Sufficiency of the Evidence—Unpaid Commissions
[25] As for DeGood’s alternative contention that the evidence did not support the
commission award, we choose to follow the same standard that is employed when
reviewing a damage award. That is, when reviewing a claim that an award of
damages is inadequate, we will neither reweigh evidence, nor judge the credibility
of the witnesses. Palmer v. Comprehensive Neurologic Servs., P.C., 864 N.E.2d 1093,
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 13 of 23
1103 (Ind. Ct. App. 2007), trans. denied. We consider only the evidence favorable
to the award. Id. Additionally, we must not reverse a damage award so long as
the damages fall within the scope of the evidence. Manzo v. Estep, 689 N.E.2d 474,
475 (Ind. Ct. App. 1997). The finder of fact is in the best position to assess
damages. Palmer, 864 N.E.2d at 1103.
[26] Here, it was established at trial that DeGood had both pre-existing product sales
and new product sales during 2009 and 2010. The total combined sales during
these two years amounted to $2,126,724.67. As discussed above, DeGood agreed
to pay Wilder two percent on pre-existing product sales from $1 million to $2
million, and two percent on new product sales up to $2 million. However, a
dispute existed as to what Wilder had actually earned in sales commissions, as well
as what DeGood had actually paid him. Both parties agree that it is not readily
apparent as to how the trial court calculated the amount due and arrived at the
figure of $9287.48 in commissions that it ordered DeGood to pay. That said,
Wilder acknowledges—and we agree—that the unpaid commission award was
within the scope of the evidence presented at trial. Thus, we decline to disturb that
judgment. See id. (holding that the jury’s award of damages was proper when the
amount of the judgment fell within the parameters of the evidence presented at
trial).
4. Alleged Bad Faith
[27] DeGood also claims that Wilder cannot recover liquidated damages under the
Wage Claim Statute for the unpaid commissions because it was not established
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 14 of 23
that DeGood acted in bad faith by failing to pay these amounts. As discussed
above, I.C. § 22-2-5-2 provides for an award of twice the amount of wages due, as
liquidated damages, if it is determined that the employer had not acted in good
faith in failing to pay the amount due the employee.
[28] Here, there is no showing that DeGood’s withholding of the amounts that were
due amounted to bad faith in light of the parties’ conduct that existed throughout
Wilder’s employment period, including the modifications to the Agreements, and
the good faith disputes that existed as to what was actually owed. Moreover, there
is no showing that the trial court ordered DeGood to pay any amount over and
above the commissions that were actually owed, i.e. no liquidated damages, with
the exception of attorney’s fees that are authorized under I.C. § 22-2-5-2. In short,
DeGood cannot be heard to complain about an improper award of liquidated
damages under the Wage Claim Statute when the trial court did not award such
damages.
C. Liability For Alleged Theft
[29] DeGood next claims that the trial court erred in not ordering Wilder to pay its
attorney’s fees and damages for civil theft under Ind. Code § 34-24-3-1, the Crime
Victims Relief Act, on its counterclaim because the evidence established that
Wilder did not work the required forty hours per week under either Agreement.
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 15 of 23
Thus, DeGood maintains that Wilder’s conduct amounted to fraud and “theft of
labor.”
[30] It is undisputed that Wilder was a salaried employee. Thus, DeGood was required
to pay Wilder his salary for each bi-weekly pay period that he worked for DeGood,
regardless of the number of days and hours that Wilder actually worked in any
particular week. I.C. § 22-2-5-1; 29 C.F.R. § 541.602 (providing that an employer
must pay an employee his or her “full salary for any week in which the employee
performs any work without regard to the number of days or hours worked. . . .”);
see also Design Indus. v. Cassano, 776 N.E.2d 398, 401 (Ind. Ct. App. 2002)
(observing that salary is defined as fixed compensation paid regularly for services).
Thus, the trial court properly determined that Wilder had not committed theft of
his wages, and DeGood is not entitled to damages under the Crime Victims Relief
Act.
III. Wilder’s Cross-Appeal
A. Notice of Termination
[31] On cross-appeal, Wilder argues that the trial court should have found that DeGood
failed to afford him the three-month notice of termination pursuant to the
requirements of the Second Agreement. Wilder asserts that he was terminated
from employment on January 5, 2011, without proper notice and that DeGood is
obligated to pay him an additional $32,300 in salary and commissions, plus
liquidated damages.
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 16 of 23
[32] At trial, Mary testified as follows:
Q: [I]s it your position that DeGood did give Mr. Wilder 3
months’ notice of its intention to terminate the contract?
A: We did. With the condition that he could keep his job. He
was told this is our 3-month notice, if you do this. If you do not do this,
then you are done at the end of this time period. He had a window of
opportunity to keep his job and he did not do it. He did not meet
the requirements of what was stipulated in his performance
review at his, at his notice, his 3-month notice, he did not
perform what he was told so that he could potentially keep his
job. He was told if you do not meet these requirements then your
job is terminated. At the, at the end of the three months.
Appellant’s Reply Appendix Vol III, at 3.
[33] The evidence established that Wilder was given specific and mandatory
performance requirements at the September 8, 2010 meeting. Unless Wilder
satisfied those requirements over the next three months, his employment with
DeGood would be terminated. Wilder failed to meet those requirements, as was
detailed in the Notification, and he was terminated. Wilder acknowledged that he
had been provided the required notice when he emailed DeGood stating, “If there
is no room for discussion then I cannot accept any of the calculations or
conclusions offered and presented to me and I will assume that on 9/8/2010 I received
my 90-day notice for termination.” Appellant’s Reply Appendix at 8 (emphasis added).
[34] Notwithstanding this evidence, Wilder directs us to Mary’s email of September 13,
2010, where she stated that no termination notice had been provided to him at the
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 17 of 23
performance review meeting on September 8. Although Mary stated that she
wanted to work with Wilder and that it was not DeGood’s intention that Wilder
would be terminated at the end of three months, she made it clear that Wilder was
required to demonstrate improved performance during that period, or his
employment would be terminated. Moreover, Wilder signed and acknowledged
the review that set forth the requirements and conditions that pertained to the
probationary period. Mary’s emails to Wilder and her testimony at trial, coupled
with Wilder’s assumption that he had, in fact, received a ninety-day notice for
termination on September 8, belies his claim on appeal that DeGood did not
provide him with the required notice under the Second Agreement.
[35] Finally, even if there was some merit to the assertion that Mary’s testimony at trial
might have contradicted what she had posited in the emails and performance
reviews, such evidence goes to her credibility. This court has long held that the
credibility of witnesses and the weight to be afforded their testimony is a question
for the trier of fact. City of Gary v. Gause, 317 N.E.2d 887, 891 (1974). And the trial
court, as the factfinder, could believe all, none, or any portion of Mary’s testimony.
In other words, even if Mary had provided testimony that could be construed as
inconsistent with her prior statements or emails, it is apparent that the trial court
chose to believe Mary’s testimony that the required notice was provided, in spite of
any alleged prior inconsistent statements that she might have made. Such alleged
contradictory statements do not render her testimony inconsequential or worthless.
See id. at 891 (recognizing that although witnesses had made inconsistent
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 18 of 23
statements to police officers prior to Fire Department Board proceedings, the
inconsistent statements went only to the weight of their testimony).
[36] In short, we will not substitute our judgment for that of the trial court that found
Mary’s trial testimony credible. Therefore, when applying our negative judgment
standard of appellate review, which we do here because Wilder bore the burden of
proof on this issue at trial and did not prevail, it was not clearly erroneous for the
trial court to infer from the evidence presented that Wilder was afforded the
required ninety-day notice of termination. Thus, Wilder’s claim that he is entitled
to an additional $32,300 in unpaid wages and commissions fails.
B. Unpaid/Underpaid Salary
[37] In a somewhat related issue, Wilder asserts on cross-appeal that the trial court
erred in denying his claim for unpaid salary amounts that were allegedly owed to
him. Wilder asserts that the evidence established that he was entitled to an
additional award of $22,236.33 in unpaid wages because DeGood had only paid
him a portion of his salary.
[38] Under the First Agreement, Wilder was to be paid an annual salary of $50,000,
with bi-weekly payments. The effective period commenced on January 1, 2009
and ended on July 31, 2010. Additionally, the parties agreed that Wilder’s salary
was to be cut by twenty-five percent from July 20, 2009 to March 12, 2010.
[39] The gross amount paid to Wilder through July 31, 2010, was $69,165. See
Appellant’s Reply Appendix at 9-60. What Wilder earned under the First Agreement
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 19 of 23
for forty-one pay periods was $77,884. Id. However, as discussed above, the
parties agreed that Wilder’s salary would be reduced by twenty-five percent for
twenty-five pay periods. After subtracting this percentage—or $9615—Wilder
should have been paid $68,269. See id. Wilder, therefore, was paid an overage of
$896, which was likely because DeGood reimbursed him for out-of-pocket
expenses on occasion.
[40] Under the Second Agreement, Wilder’s annual base salary was increased to
$55,000. See Appellant’s Reply Appendix at 9-60. His bi-weekly payment was $2115,
that commenced on August 1, 2010, and extended through January 6, 2011. The
gross amount that Wilder received from DeGood during this period was $17,821.
DeGood acknowledges that it paid Wilder $3329 less than what it owed, based on
the September 8, 2010 employment performance review, when DeGood informed
Wilder that it was strictly enforcing the forty-hour per week requirement. Thus,
DeGood calculated the time that Wilder had not worked and reduced Wilder’s
salary accordingly.
[41] Notwithstanding DeGood’s decision, Wilder remained a salaried employee and
was entitled to his agreed-upon compensation set forth in the Second Agreement.
See I.C. § 22-2-5-1 and -2. However, we do not agree with Wilder’s contention
that the trial court was obligated to find that DeGood acted in bad faith when it
withheld a portion of the amounts that were due under the Second Agreement,
particularly when considering Wilder’s course of conduct throughout his
employment, the mutually agreed-upon modifications of the agreements, and the
bona fide disputes that occurred between the parties. Similarly, we reject Wilder’s
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 20 of 23
assertion that “DeGood only paid Mr. Wilder when and what [it] felt like paying
him.” Reply Brief of Cross-Appellant at 14. Hence, we remand this case to the trial
court with instructions that it enter an additional award of $3329 to Wilder for
unpaid wages, and to calculate a reasonable amount of attorney’s fees related to
this particular claim in accordance with the Wage Claim Statute. We, however,
decline to order DeGood to pay liquidated damages, inasmuch as the evidence
failed to establish that DeGood’s withholding of these wages amounted to bad
faith under the Wage Claim Statute.
C. Remaining Damages—Pre-Judgment Interest and Costs
[42] Wilder argues that the trial court erred in not awarding him pre-judgment interest
on the commissions that DeGood had failed to pay. Wilder also asserts that he is
entitled to pre-judgment interest on any additional damages that are awarded in
this appeal.
[43] It is well-settled that an award of prejudgment interest in a breach of contract
action is warranted if the amount of the claim rests upon a simple calculation and
the terms of the agreement make such a claim ascertainable. Song v. Iatarola, 76
N.E.3d 936, 939 (Ind. Ct. App. 2017). Prejudgment interest is awarded to fully
compensate an injured party for the lost use of money. Fackler v. Powell, 923
N.E.2d 973, 977 (Ind. Ct. App. 2010). Put another way, “prejudgment interest is
recoverable not as interest but as additional damages to accomplish full
compensation.” Crawford Cty. Cmty. Sch. Corp. v. Enlow, 734 N.E.2d 685, 692 (Ind.
Ct. App. 2000), trans. denied. The test for determining whether an award of
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 21 of 23
prejudgment interest is appropriate is whether the damages are complete and may
be ascertained as of a particular time. Song, 76 N.E.3d at 939 (Ind. Ct. App. 2017).
The amount is computed from the time the principal amount was demanded or
due and is allowable at the permissible statutory rate when no contractual
provision specifies the interest rate. Id. Importantly, for purposes of our review, an
award of prejudgment interest is generally not considered a matter of discretion. Id.
The current interest rate is eight percent when there is no contract by the parties
specifying a different interest rate. Ind. Code § 24-4.6-1-101.
[44] Here, Wilder’s claims for unpaid commissions and salary were ascertainable
pursuant to the Agreements and were due and owing on a certain day in the past.
Thus, Wilder is entitled to pre-judgment interest on these amounts which, on
remand, is to be calculated at the statutory rate.
[45] Finally, we note that the trial court assessed costs against Wilder. Ind. Code § 34-
52-1-1 provides: “In all civil actions, the party recovering judgment shall recover
costs, except in those cases in which a different provision is made by law.”
Because Wilder has substantially prevailed in this appeal, he is entitled to recover
costs of the action. Moreover, the damages provision under the Wage Claim
Statute provides for the assessment of those costs. I.C. § 22-2-5-2. Thus, we
instruct the trial court to calculate the costs of this matter on remand and to enter
an order against DeGood for that amount.
Conclusion
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 22 of 23
[46] In light of our disposition of the issues discussed above, we affirm in part, reverse
in part, and remand this cause to the trial court with instructions that it amend the
order to include an additional award for Wilder in the amount of $3329 in unpaid
wages. We further instruct the trial court to calculate the costs of this matter, the
amount of prejudgment interest that is owed, determine the additional award of
reasonable attorney’s fees to which Wilder is entitled, and enter an order
accordingly. In all other respects, the trial court’s judgment is affirmed.
Brown, J. and Tavitas, J., concur.
Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019 Page 23 of 23