William Wressell v. R.L. Turner Corporation

Apr 18 2013, 9:01 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
ROBERT S. RIFKIN MICHAEL L. EINTERZ, JR.
Maurer Rifkin & Hill, P.C. Einterz & Einterz
Carmel, Indiana Zionsville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WILLIAM WRESSELL, )
)
Appellant/Cross-Appellee/Plaintiff, )
)
vs. ) No. 06A01-1301-PL-5
)
R.L. TURNER CORPORATION, )
)
Appellee/Cross-Appellant/Defendant. )
APPEAL FROM THE BOONE SUPERIOR COURT
The Honorable Matthew C. Kincaid, Judge
Cause No. 06D01-1201-PL-11
April 18, 2013
OPINION – FOR PUBLICATION
BRADFORD, Judge.
Between September 15, 2009, and June 20, 2010, William Wressell was employed by
R.L. Turner Corporation (“RLTC”) as a concrete foreman and worked on two of RLTC’s
construction projects. Both projects were public works projects subject to the Indiana
Common Construction Wage Act (“CCWA”), and Wressell was classified and paid as a
skilled cement mason pursuant to the CCWA. Wressell eventually brought suit against
RLTC, claiming that he was significantly underpaid by RLTC for his work. The trial
court granted summary judgment in favor of RLTC, and Wressell now appeals. Wressell
argues that the trial court erred in granting summary judgment because the designated
evidence shows that much of the work he did for RLTC was that of either a skilled
carpenter or a skilled laborer, work that, overall, entitled him to a higher wage and higher
fringe benefits. RLTC responds to these arguments and cross-appeals, contending that
Wressell has flagrantly disregarded the Indiana Rules of Appellate Procedure such that it
is entitled to an award of attorney’s fees. Concluding that the trial court erred in entering
summary judgment in favor of RLTC, we reverse the judgment of the trial court and
remand for further proceedings. We further conclude that RLTC is not entitled to an
award of attorney’s fees.
FACTS AND PROCEDURAL HISTORY
Between September 15, 2009, and June 20, 2010, RLTC employed Wressell as a
skilled cement mason. Wressell worked on two projects for RLTC, the Gatewood wing
of the Mechanical Engineering Building at Purdue University (“the Gatewood Project”)
and the Informatics and Classroom Addition at Indiana University (“the Informatics
Project”).
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Wressell worked 677 hours on the Gatewood Project, a project whose common
construction wage scale provided that a skilled cement mason was to be paid an hourly
wage of $24.25 and fringe benefits of $10.68 per hour. All told, a skilled cement mason
would have been entitled to be paid a total of $23,647.61 for working 677 hours on the
Gatewood project. RLTC paid Wressell wages of $18,344.98 and fringe benefits of
$6514.42 for his work on the Gatewood Project, a total of $24,859.40. A skilled
carpenter working on the Gatewood Project would have been entitled to an hourly wage
of $24.90 and fringe benefits of $12.80 per hour. A skilled laborer working on the
Gatewood Project would have been entitled to an hourly wage of $21.08 and fringe
benefits of $9.78 per hour.
Wressell worked 452.5 hours on the Informatics Project, a project whose common
construction wage scale provides that a skilled cement mason was to be paid an hourly
wage of $21.75 and fringe benefits of $8.52 per hour. All told, a skilled cement mason
would have been entitled to be paid a total of $13,697.18 for working 452.5 hours on the
Informatics Project. RLTC paid Wressell wages of $12,044.50 and fringe benefits of
$3481.07 for his work on the Informatics Project, a total of $15,525.57. A skilled
carpenter working on the Informatics Project would have been entitled to an hourly wage
of $26.58 and fringe benefits of $12.02 per hour. A skilled laborer working on the
Informatics Project would have been entitled to an hourly wage of $21.58 and fringe
benefits of $10.39 per hour.
RLTC made several other payments on Wressell’s behalf that it credited against its
fringe benefit obligations to him. Specifically, RLTC paid (1) $268.80 to a benefit
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consultant to provide employees with claims assistance, if needed; (2) $128.70 to a
pension plan; (3) a $1397.00 assessment charged to Wressell to recover a portion of
fringe benefits paid by RLTC on his behalf; (4) $245.25 for mandatory first aid and CPR
training; (5) $225.00 for materials used in training; (6) $1352.00 paid to reimburse
Wressell for gasoline used in driving to and from the Projects; and (7) a $1260
assessment charged to Wressell to pay RLTC to administer his benefits.
On or about October 10, 2010, Wressell filed common construction wage
complaints with the Indiana Department of Labor (“IDOL”), claiming that RLTC
“switched pay rate in middle of job [and/or] never agreed upon rate” for the Gatewood
and Informatics Projects. Appellant’s App. pp. 31, 33. Although the IDOL opened
investigations into Wressell’s complaints, it did not resolve them, “primarily because
[RLTC] either failed or refused to cooperate in the investigations and refused to produce
the records necessary for [IDOL] to determine whether [RLTC] paid wages in accordance
with the [CCWA].” Appellant’s App. p. 35. On December 29, 2011, the Indiana
Attorney General’s office authorized Wressell to pursue his claims in court. On January
5, 2012, Wressell sued RLTC, contending that he had been underpaid for his work on the
Gatewood and Informatics Projects.
On June 29, 2012, RLTC filed a motion for summary judgment, alleging that there
existed no genuine issue of material fact regarding whether Wressell had been paid the
wages and fringe benefits to which he was entitled. Inter alia, RLTC designated an
affidavit from its Chief Financial Officer (“CFO”) James Gann, in which he averred that
the wages and fringe benefits paid to Wressell for his work on the Gatewood and
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Informatics Projects were in compliance with the common construction wage scale in
place for each project.
On August 27, 2012, Wressell filed a response to RLTC’s summary judgment
motion and cross-moved for summary judgment. The basis of Wressell’s motion was his
contention that much of the work he performed on the Gatewood and Informatics
Projects was actually as a carpenter or laborer, work for which, overall, he was entitled to
be paid more. Wressell also contended that many of RLTC’s payments credited against
its fringe benefit obligation to him were, in fact, not for fringe benefits.
Wressell designated his affidavit, in which he averred that he “provided work as a
skilled carpenter [to RLTC] handling all materials necessary to prepare and dismantle
forms for pouring concrete.” Appellant’s App. p. 204. For the Gatewood Project,
Wressell averred that, of 677 hours worked, 424 regular and 15 overtime hours were as a
carpenter, 219 regular and 7 overtime hours were as a cement mason, and 11 regular and
0.5 overtime hours were as a laborer. For the Informatics Project, Wressell averred that,
of 452.5 hours worked, 320 regular and 21.5 overtime hours were as a carpenter, 109
regular hours were as a cement mason, and 2 regular hours were as a laborer.
Wressell also averred to the following:
15. The distance between [RLTC]’s Zionsville office and the
Gatewood [Project] is in excess of 50 miles (100 miles round trip). The
distance between [RLTC]’s Zionsville office and the [Informatics Project]
is in excess of 70 miles (140 miles round trip).
16. When I worked at the Gatewood and Informatics Projects, I
paid an average of $2.66 per gallon to fuel my pick-up truck, and it cost me
in excess of $17.00 a day in gas to drive to and from the Gatewood Project
… and in excess of $24.00 per day to drive to and from the Informatics
Project[.]
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17. [RLTC] paid me $2.00 per hour to apply to the cost of gas for
my truck for each hour I worked at the Gatewood Project …; accordingly,
if I worked 8 hours … I was given $16.00 to cover gas. If I worked less
than 8 hours, the amount I was given for gas was reduced accordingly.
[RLTC] gave me no money for gas to drive the 140 miles to and from
Bloomington, Indiana for the days I worked on the Informatics Project.
18. I was not required by [RLTC] to document the miles I drove
each day to the common construction wage worksites and [RLTC] did not
treat the gas payments to me as taxable fringe benefits or report the gas
payments as income to the IRS. [RLTC] did not provide transportation for
me to and from its out-of-town worksites.
19. I spent more than the $1,352.00 [RLTC] gave me in gas
money to drive to [RLTC]’s work sites in Lafayette, Indiana and
Bloomington, Indiana.
20. [RLTC] did not provide me with a pension or pension benefit,
and [RLTC] did not contribute any money to a pension for me.
Appellant’s App. pp. 205-06.
Wressell also designated an affidavit from Monte Moorhead, in which Moorhead
averred, inter alia, that
3. I have been employed as a Field Auditor with the Indiana
Department of Labor, Wage and Hour Division (IDOL) since 2009. Prior
to my employment with the IDOL, I spent 15 years in corporate accounting
as a controller for a manufacturing/service company and an additional 9
years of professional employment with two CPA firms as a staff
accountant.
4. As a field auditor, I audit the pay practices of Indiana
employers who are required to comply with [the CCWA].
5. Under audit guidelines established by IDOL, an employee
working on [a] common construction wage project must be paid for the
specific duties and tasks he performs and in accord with the common
construction wage job classification into which those fall.
6. An employee who does the work of a carpenter must be paid
the common construction wage (CCW) established for the job classification
of a carpenter even if the employee is given a different job title by his
employer.…
7. Employees may work in more than one job classification on a
project. If they do, the work performed in each job classification is treated
separately for the purposes of an IDOL audit. An employee’s job
classification depends on the specific tasks the employee performs.
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8. To the extent an employee is engaged in planning, laying out,
building and dismantling forms used in shaping, pouring and curing
concrete, or in building scaffolding and weather proofing protection used in
concrete work, the employee is doing the work of a form or rough
carpenter, and his work falls under the job classification of carpenter.
Appellant’s App. pp. 209-10.
Moorhead also averred that
[t]he IDOL relies, in part, on O*Net, an internet service, for guidance in
classifying the work of employees on common construction wage jobs.
O*Net replaces the Directory of Occupational Titles [(“the Directory”)]
formerly published by the U.S. Department of Labor. The Directory …
described in detail the duties of various job classifications. The U.S.
Department of Labor as well as other governmental agencies and employers
now use O*Net for job classification.
Appellant’s App. p. 210.
Wressell designated the Directory descriptions for “carpenter, rough[,]” “form
builder[,]” and “cement mason” and the O*Net summary reports for “Rough Carpenters”
and “Cement Masons and Concrete Finishers.” Appellant’s App. pp. 214, 215, 223, 226,
228. The Directory description for rough carpenter reads, in part, “Builds rough wooden
structures, such as concrete forms[.]” Appellant’s App. p. 214. The Directory
description for form builder lists an alternate job title as “carpenter, form” and reads, in
part, “Constructs built-in-place or prefabricated wooden forms, according to
specifications, for molding concrete structures[.]” Appellant’s App. p. 223. The
Directory description for cement mason reads, in part, “May direct subgrade work,
mixing of concrete, and setting of forms.” Appellant’s App. p. 226.
The O*Net summary report for rough carpenters reads, in part, “Build rough
wooden structures, such as concrete forms, scaffolds, tunnel, bridge, or sewer supports,
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billboard signs, and temporary frame shelters, according to sketches, blueprints, or oral
instructions.” Appellant’s App. p. 215. The O*Net summary report for cement masons
and concrete finishers reads, in part, “Set the forms that hold concrete to the desired pitch
and depth, and align them.” Appellant’s App. p. 228. None of the job descriptions
Wressell designated indicate the list of tasks associated with that particular job is
exhaustive.
Finally, regarding fringe benefits, Moorhead averred the following:
12. Employer expenses that are a part of its regular administrative
overhead costs of doing business, or that are primarily for the benefit of the
employer, are not treated by the IDOL as employee fringe benefits.
Expenses that are paid by a company to operate its business and to achieve
increases in productivity and profit are not considered fringe benefits where
the expenses are not a direct cash payment or other direct benefit to the
employee; consequently, even if an employee gets an incidental benefit, the
cost is not treated as a fringe benefit.
13. When an employee is required to undergo employer
mandated training, and the training is given at the discretion and the control
of the employer, the IDOL would not allow the employer to claim a fringe
benefit allocation or credit for the training, nor is the employer entitled to
claim as a fringe benefit the cost it pays to provide books or materials to its
employees for the training.
14. As an example, if a company requires an employee to take
first aid or CPR training, its cost for providing such training would not be
considered by the IDOL as a fringe benefit to the employee because the
training was required by the Company and the employee was under the
direction and control of the employer.
15. If the employer has a pension plan, but an employee does not
participate in the plan, and the employer does not make any contributions
on the employee’s behalf, then the employer’s expenses for the pension
plan are not credited by the IDOL as a fringe benefit to the employee.
16. If an employer pays the cost of providing a benefit plan, but
an employee chooses not to elect to participate in the plan, the IDOL would
not allow the employer to claim a fringe benefit credit for its expenses.
17. The IDOL does not consider an employer’s administrative
costs to provide benefits to employees as a fringe benefit. It makes no
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difference whether the employer pays a third party to administer the
benefits or administers the benefits in-house.
18. If employees are given a fixed dollar amount per hour to
reimburse them for having to spend their own money on gas to drive to and
from a company’s principal office to remote construction sites, and the
money paid is not reported by the employer to the IRS as income to the
employee, then the IDOL does not consider the money paid to the
employee to be a fringe benefit.
Appellant’s App. pp. 211-12.
On September 20, 2012, RLTC responded to Wressell’s cross-motion for
summary judgment and moved to strike paragraphs 6 and 12 through 18 of Moorhead’s
affidavit. In its response, RLTC also designated the O*Net summary report for cement
masons and concrete finishers. On December 10, 2012, the trial court entered summary
judgment in favor or RLTC and granted RLTC’s motion to strike paragraphs 12 through
18 of Moorhead’s affidavit. Regarding Moorhead’s affidavit, the trial court found the
following:
9. Monte Moorhead avers that some of what Gann avers are
fringe benefits would not be so regarded by the U.S. Department of Labor.
The same are irrelevant and are legal conclusions. The Court should and
does disregard paragraphs 12-18 and the same are now STRICKEN. Monte
Moorhead is not controlling legal authority on what wages are under the
CCWA.
Appellant’s App. p. 291.
The trial court also found that
12. There is no dispute that all work Wressell performed and for
which he was paid is for work customarily performed by a skilled cement
mason. There is no evidence that Wressell did work other than that which a
skilled cement mason would do.
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Appellant’s App. p. 291. The trial court concluded that “as a matter of law based on the
facts as designated here…, Wressell cannot challenge RLTC’s classification of his
employment on the two projects as a cement mason[,]” and entered summary judgment in
favor of RLTC.
DISCUSSION AND DECISION
Direct Appeal Issues
I. Whether the Trial Court Abused its Discretion in
Striking Portions of Moorhead’s Affidavit
Wressell contends that the trial court abused its discretion in striking paragraphs
12 through 18 of Moorhead’s affidavit, which, as related above, deal with how IDOL
determines whether a payment qualifies as a fringe benefit pursuant to the CCWA and
detail some practical applications. “A trial court’s ruling on a motion to strike a summary
judgment affidavit is reviewed for an abuse of discretion.” Jackson v. Trancik, 953
N.E.2d 1087, 1090 (Ind. Ct. App. 2011) (citing Kroger Co. v. Plonski, 930 N.E.2d 1, 5
(Ind. 2010)). “We will reverse only if the trial court’s decision is ‘clearly erroneous and
against the logic and effect of the facts and circumstances before the court.’” Id. at 1090-
91 (quoting Indpls. Podiatry, P.C. v. Efroymson, 720 N.E.2d 376, 383 (Ind. Ct. App.
1999)).
The trial court struck portions of Moorhead’s affidavit on the basis that they were
irrelevant and contained legal conclusions. We find both of these conclusions to be
clearly erroneous. The question that must be answered is whether various payments
made by RLTC directly to Wressell or on his behalf constitute fringe benefits. In Union
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Township School Corp. v. State ex rel. Joyce, 706 N.E.2d 183 (Ind. Ct. App. 1996), trans.
denied, we concluded that, for purposes of the CCWA, “wages” included fringe benefits
and adopted the following definition for wages:
Every form of remuneration payable for a given period to an individual for
personal services, including salaries, commissions, vacation pay, dismissal
wages, bonuses and reasonable value of board, rent, housing, lodging,
payments in kind, tips, and any other similar advantage received from the
individual’s employer or directly with respect to work for him.
[The] term should be broadly defined and includes not only periodic
monetary earnings but all compensation for services rendered without
regard to the manner in which such compensation is computed.
Id. at 191 (quoting BLACK’S LAW DICTIONARY 1579 (6th ed. 1990); brackets in Union
Twp. Sch. Corp.). Inter alia, it is clear that, in order for something to be a fringe benefit
(a subset of wages), it has to benefit the employee. It follows that a payment or other
advantage that benefits the employer would not be a fringe benefit, which is the premise
underlying Wressell’s argument on this point.
The paragraphs in question are unquestionably relevant. “‘Relevant evidence’
means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Ind. Evidence Rule 401. Paragraphs 12 through 18 of
Moorhead’s affidavit relate to IDOL’s general policy regarding how it defines fringe
benefits and then detail how that policy is applied in certain situations, situations that all
occurred in this case. Whether IDOL considers a certain type of payment to be a fringe
benefit strikes us as evidence that would be quite helpful to the factfinder in
characterizing that payment, and therefore relevant.
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We must also conclude that the trial court’s conclusion that the paragraphs
contained legal conclusions is clearly erroneous. “Witnesses may not testify to opinions
concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations;
whether a witness has testified truthfully; or legal conclusions.” Evid. R. 704(b). We
conclude that Moorhead’s averments regarding IDOL policy and whether IDOL treats
certain types of payments as fringe benefits do not constitute legal conclusions. At most,
they are statements regarding administrative practices and policy, and nowhere in them is
there any suggestion that they are somehow binding on the factfinder or that a particular
result in Wressell’s case is required by law. In other words, they contain no legal
conclusion that certain payments made by RLTC to, or on behalf of, Wressell were not
for fringe benefits under Indiana law. We conclude that the trial court abused its
discretion in striking paragraphs 12 through 18 of Moorhead’s affidavit.
II. Whether the Trial Court Erred in Granting Summary Judgment
Standard of Review
When reviewing the grant or denial of a summary judgment motion, we apply the
same standard as the trial court. Merchs. Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc.,
741 N.E.2d 383, 386 (Ind. Ct. App. 2000). Summary judgment is appropriate only where
the evidence shows that there is no genuine issue of material fact and the moving party is
entitled to a judgment as a matter of law. Id.; Ind. Trial Rule 56(C). All facts and
reasonable inferences drawn from those facts are construed in favor of the nonmoving
party. Id. To prevail on a motion for summary judgment, a party must demonstrate that
the undisputed material facts negate at least one element of the other party’s claim. Id.12
Once the moving party has met this burden with a prima facie showing, the burden shifts
to the nonmoving party to establish that a genuine issue does in fact exist. Id. The party
appealing the summary judgment bears the burden of persuading us that the trial court
erred. Id.A. Wressell’s Job Classification
Both parties contend that the designated evidence fails to give rise to a genuine
issue of material fact regarding Wressell’s job classification and that summary judgment
in their respective favors is therefore warranted. We disagree with both parties. The
O*Net summary report for rough carpenters reads, in part, “Build rough wooden
structures, such as concrete forms,” Appellant’s App. p. 215, while the O*Net summary
report for cement masons and concrete finishers reads, in part, “Set the forms that hold
concrete to the desired pitch and depth, and align them.” Appellant’s App. p. 228. While
building wooden concrete forms is certainly consistent with the summary report for rough
carpenter, it is just as consistent with the summary report for cement masons and concrete
finishers. Just because one “sets” a concrete form does not exclude the possibility that
that person also built the form, and, as already noted, the list of tasks in the relevant
O*Net summary reports is non-exhaustive. It seems obvious that there would be
considerable overlap between job classifications on any CCWA job site, with some tasks,
such as clean-up or tool maintenance, being common to almost all, if not all, job
classifications. In other words, there is no designated evidence to suggest that a cement
mason is instantly transformed into a carpenter simply because he may perform a task
that a carpenter also performs.
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Moreover, RLTC designated evidence from CFO Gann that the wages paid to
Wressell for his work on the Gatewood and Informatics Projects were in compliance with
the CCWA. One inescapable inference to be drawn from CFO Gann’s averment is that
Wressell was correctly designated as a skilled cement mason the entire time he worked
for RLTC; Wressell does not dispute that he was paid the proper wage for any particular
job classification, arguing only that he was improperly classified. For his part, Wressell
designated evidence that, pursuant to the CCWA, a person performing particular work
was entitled to be paid for that work, regardless of job designation, and that much of
Wressell’s work for RLTC was as a skilled carpenter or skilled laborer, not a skilled
cement mason. We conclude that this designated evidence generates a genuine issue of
material fact regarding whether some of Wressell’s work for RLTC was as a skilled
carpenter or skilled laborer. We therefore reverse the trial court’s grant of summary
judgment on this question and remand for trial on the questions of whether some of the
work Wressell did for RLTC was as a skilled carpenter or skilled laborer and, if so, how
much.
B. Fringe Benefits
Wressell contends that the designated evidence generates a genuine issue of
material fact as to whether he was paid sufficiently for fringe benefits. More specifically,
Wressell contends that RLTC improperly credited certain payments against its fringe
benefit obligation to him. We conclude that a genuine issue of material fact exists on this
question as well. RLTC designated evidence from CFO Gann that the fringe benefits
paid to Wressell for his work on the Gatewood and Informatics Projects were in
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compliance with the CCWA. Wressell designated evidence of seven payments RLTC
made to him, or on his behalf, that RLTC considered to be for fringe benefits. Wressell
designated additional evidence tending to show that those payments were of a type that
did not, in fact, qualify as being for fringe benefits. The trial court erred in entering
summary judgment in favor of RLTC on this point. We remand for trial on whether
RLTC properly paid Wressell for fringe benefits.
Cross-Appeal Issue
III. Whether RLTC Is Entitled to Appellate Attorney’s Fees
RLTC requests that we award it appellate attorney’s fees pursuant to Indiana
Appellate Rule 66(E), which provides, in part, “The Court may assess damages if an
appeal … is frivolous or in bad faith. Damages shall be in the Court’s discretion and may
include attorney’s fees.”
Our discretion to award attorney fees under Indiana Appellate Rule
66(E) is limited, however, to instances when an appeal is permeated with
meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of
delay. Orr v. Turco Mfg. Co., Inc., 512 N.E.2d 151, 152 (Ind. 1987).
Additionally, while Indiana Appellate Rule 66(E) provides this Court with
discretionary authority to award damages on appeal, we must use extreme
restraint when exercising this power because of the potential chilling effect
upon the exercise of the right to appeal. Tioga Pines Living Ctr., Inc. v.
Indiana Family and Social Svcs. Admin., 760 N.E.2d 1080, 1087 (Ind. Ct.
App. 2001), trans. denied.
Indiana appellate courts have formally categorized claims for
appellate attorney fees into “substantive” and “procedural” bad faith claims.
Boczar v. Meridian Street Found., 749 N.E.2d 87, 95 (Ind. Ct. App. 2001).
To prevail on a substantive bad faith claim, the party must show that the
appellant’s contentions and arguments are utterly devoid of all plausibility.
Id. Procedural bad faith, on the other hand, occurs when a party flagrantly
disregards the form and content requirements of the rules of appellate
procedure, omits and misstates relevant facts appearing in the record, and
files briefs written in a manner calculated to require the maximum
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expenditure of time both by the opposing party and the reviewing court. Id.Even if the appellant’s conduct falls short of that which is “deliberate or by
design,” procedural bad faith can still be found. Id. Finally, we note that
even pro se litigants are liable for attorney’s fees when they disregard the
rules of procedure in bad faith. Srivastava, 779 N.E.2d at 61; see also
Watson v. Thibodeau, 559 N.E.2d 1205, 1211 (Ind. Ct. App. 1990) (stating
that the court could “cut [the pro se litigants] no slack simply because
[they] have no formal legal training.”).
Thacker v. Wentzel, 797 N.E.2d 342, 346-47 (Ind. Ct. App. 2003).
RLTC contends that Wressell committed procedural bad faith by improperly
arguing the fringe benefit issue. RLTC notes that while Wressell devotes a large portion
of his fact pattern to the issue of fringe benefits, he does not specifically make an
argument regarding fringe benefits framed in a summary judgment context. While this is
technically true, Wressell does make an argument regarding the striking of portions of
Moorhead’s affidavit which related to the fringe benefits issue and had no connection
with the job classification issues, which we consider sufficient to address the fringe
benefits issue on the merits. Suffice it to say that we found Wressell’s submissions more
than adequate to aid our review of the issues raised in this case, and we find nothing in
either Wressell’s Appellant’s Brief or Reply Brief to warrant a conclusion of procedural
bad faith. We decline RLTC’s request to remand for the calculation of appellate
attorney’s fees.
The judgment of the trial court is reversed and remanded for further proceedings.
RILEY, J., and BROWN, J., concur.
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