                                                  Jan 29 2014, 10:43 am
FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEES:

ROBERT T. SANDERS, III                        GLENN L. DUNCAN
Sanders Pianowski, LLP                        LISA GILKEY SCHOETZOW
Elkhart, Indiana                              Thorne Grodnik, LLP
                                              Elkhart, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

RALPH ANDREWS,                                )
                                              )
     Appellant/Defendant,                     )
                                              )
              vs.                             )         No. 20A04-1303-PL-141
                                              )
MOR/RYDE INTERNATIONAL, INC.,                 )
                                              )
     Appellees/Defendants.                    )


                    APPEAL FROM THE ELKHART SUPERIOR COURT
                       The Honorable George W. Biddlecome, Judge
                             Cause No. 20D03-0908-PL-55


                                   January 29, 2014


                             OPINION – FOR PUBLICATION

PYLE, Judge
                            STATEMENT OF THE CASE

      In this interlocutory appeal, Ralph Andrews (“Andrews”) appeals the trial court’s

order finding that should his complaint against Mor/Ryde for breach of contract be

successful at a future trial, the damages awarded under Indiana Code § 24-4-7-5(b), the

Indiana Sales Representative Act (“the Act”), are punitive in nature, and, therefore,

would be subject to the evidentiary standard, limitation, and diversion provisions of

Indiana’s punitive damages statute under Indiana Code § 34-51-3-1 et seq.

      We affirm.

                                        ISSUE

      Whether the damages awarded under Indiana Sales Representative Act are
      punitive in nature.

                                        FACTS

      Andrews is an independent sales representative who performed services on behalf

of Mor/Ryde since 1996. Mor/Ryde is a manufacturer and distributor of various types of

products sold internationally and throughout the Midwest.       On October 31, 1996,

Andrews and Mor/Ryde executed a contract making Andrews its sales agent.            The

contract contained a provision where either party could terminate the agreement with

thirty (30) days written notice or immediately for violating the terms of the agreement.

By an email dated September 29, 2008, and a letter dated October 9, 2008, Mor/Ryde

notified Andrews that it was terminating the agreement.       Following notice of the

termination of the agreement, Andrews filed his complaint on June 9, 2009, alleging that

Mor/Ryde had materially breached the agreement and had done so in an “egregious”


                                           2
manner. (App. 26). Mor/Ryde filed its answer on June 26, 2009, denying all of the

allegations. Mor/Ryde also filed a counterclaim for overpaid commissions.

       Both parties filed motions for summary judgment.          In his motion for partial

summary judgment, Andrews requested a finding that the Act applied to his claim. In its

motion for summary judgment, Mor/Ryde argued that the contract between it and

Andrews was not binding. In the alternative, Mor/Ryde claimed that Andrews waived his

claim by accepting commission payments that were less than what was specified in the

contract, that Mor/Ryde followed the provisions of the agreement as to its termination

clause, and that the effective date of termination of the agreement was October 31, 2008.

The trial court granted Andrews’s motion for partial summary judgment and found that

the Act applied to his claim. The trial court granted Mor/Ryde’s motion in part, finding

that Mor/Ryde complied with the termination clause of the agreement. However, its

motion was denied as to whether Andrews waived his claim by accepting less in

commission payments.

       On July 23, 2012, Mor/Ryde filed a pleading seeking a ruling from the court that

any exemplary damages awarded under the Act are punitive in nature and, therefore,

would be subject to the heightened evidentiary standard and distribution procedures

outlined in Indiana Code §§ 34-51-3-2 and 34-51-3-6, the punitive damages statutes.

After conducting a hearing, the trial court issued the following order:

       IT IS THEREFORE, ORDERED, ADJUDGED, AND DECREED that
       the damages available under Ind. Code § 24-4-7-5[(b)] are punitive in
       nature and are, therefore, subject to the provisions of Ind. Code § 34-51-3-
       1, et. seq. Accordingly, in order to be successful at trial in recovering
       damages under Ind. Code § 24-4-7-5[(b)], Plaintiff is required to establish

                                             3
       by clear and convincing evidence that Defendant acted in bad faith in
       failing to pay commissions due and owing, if any, under the Agreement.

(App. 21). On March 15, 2013, the trial court issued an order certifying its

decision for interlocutory appeal and stayed the proceedings indefinitely. This

court accepted jurisdiction over this interlocutory appeal.

                                        DECISION

       Andrews claims that the trial court erred in finding that the damages awarded

under the Act are punitive in nature and thus subject to the evidentiary standard,

limitation, and diversion provisions of Indiana’s punitive damage statute.

       Interpreting a statute is a question of law, and such questions are reviewed de

novo. State v. International Business Machines Corp., 964 N.E.2d 206, 209 (Ind. 2012).

‘“[A]ppellate courts need not defer to a trial court’s interpretation of [a] statute’s

meaning.’” Id. (quoting Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 942

(Ind. 2001)). Rather, appellate courts “independently review the statute’s meaning and

apply it to the facts of the case under review.” Id.

       When interpreting an Indiana statute, the first step is to determine whether the

legislature has spoken clearly and unambiguously on the point in question. St. Vincent

Hosp. and Health Care Center, Inc. v. Steele, 766 N.E.2d 699, 703 (Ind. 2002). When a

statute is clear and unambiguous, we need not apply any rules of construction other than

to require that words and phrases be taken in their plain, ordinary, and usual sense. Id.

Clear and unambiguous statutory meaning leaves no room for judicial construction. Id.




                                              4
      Regarding the termination of a contract between a sales representative and a

principal, Ind. Code § 24-4-7-5 provides the following:

      (a) If a contract between a sales representative and a principal is terminated,
          the principal shall, within fourteen (14) days after payment would have
          been due under the contract if the contract had not been terminated, pay
          to the sales representative all commissions accrued under the contract.

      (b) A principal who in bad faith fails to comply with subsection (a) shall be
          liable, in a civil action brought by the sales representative, for
          exemplary damages in an amount no more than three (3) times the sum
          of the commission owed to the sales representative.

      (c) In a civil action under subsection (b), a principal against whom
          exemplary damages are awarded shall pay the sales representative’s
          reasonable attorney’s fees and court costs. However, if judgment is
          entered for the principal and the court determines that the action was
          brought on frivolous grounds, the court shall award reasonable
          attorney’s fees and court costs to the principal.

(Emphasis added).

      Here, the language chosen by the legislature is clear and unambiguous. The term

“exemplary”, as it refers to damages, is defined as “punitive damages.” BLACK’S LAW

DICTIONARY 612 (8th ed. 2004); WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY

795 (1976).

      Our supreme court has explained that punitive damages are a creature of common

law. Cheatham v. Pohle, 789 N.E.2d 467, 471 (Ind. 2003). Because no one has a vested

right to punitive damages, our legislature is free to abolish or modify how punitive

damages may be awarded. Id. Similar to other states, Indiana permits the fact finder to

award punitive damages “and thereby inflict punishment on the defendant, but [with

specific] restrictions on the amount the plaintiff may benefit from the award.” Id. at 472.


                                            5
In addition, I.C. § 34-51-3-2 requires that “[t]he facts warranting punitive damages must

be established by clear and convincing evidence.” Id. Further “[t]his chapter applies to

all cases in which a party requests the recovery of punitive damages in a civil action.”

I.C. § 34-51-3-1. (Emphasis added).

       When interpreting statutes, our goal is to determine and give effect to the intent of

the legislature. Clark v. Clark, 971 N.E.2d 58 (Ind. 2012). We “‘presume that the words

were selected and employed to express their common and ordinary meanings.’” Id. at 61

(quoting Porter Dev., LLC v. First Nat’l Bank of Valparaiso, 866 N.E.2d 775, 778 (Ind.

2007)). Hence, we also presume that if the legislature intended the damages awarded

under the Act to be something other than punitive in nature, it could have specifically

exempted those damages from the requirements of I.C. § 34-51-3-1 et. seq. Therefore,

when a plaintiff has alleged bad faith under the Act, the plaintiff must show bad faith by

clear and convincing evidence, and any exemplary damages awarded are subject to the

requirements of I.C. § 34-51-3-1 et. seq. The judgment of the trial court is affirmed.

       Affirmed.

CRONE, J., concurs.

BARNES, J., dissents with opinion.




                                             6
                             IN THE
                   COURT OF APPEALS OF INDIANA

RALPH ANDREWS,                                   )
                                                 )
      Appellant-Plaintiff,                       )
                                                 )
             vs.                                 )    No. 20A04-1303-PL-141
                                                 )
MOR/RYDE INTERNATIONAL, INC                      )
                                                 )
      Appellee-Defendant.                        )



BARNES, Judge, dissenting

      I respectfully dissent.    I do not believe the general statutes and principles

governing “punitive” damages control an express statutory award of “exemplary”

damages under the Indiana Sales Representative Act, even if those two words are

sometimes used interchangeably.

      It is true that our legislature has placed certain limitations on an award of punitive

damages under Indiana Code Chapter 34-51-3, expressly using the word “punitive.”

Because punitive damages generally are a creature of the common law, the legislature is

free to create, modify, or abolish the ability of plaintiffs to collect such damages.

Cheatham v. Pohle, 789 N.E.2d 467, 471 (Ind. 2003).           Also, unlike compensatory
                                     7
damages, plaintiffs have no right to an award of punitive damages and a trier of fact is not

required to award them, even if the evidence could have supported such an award. Id. at

472.

       The damages we are addressing here, however, are not a creature of the common

law. They are the creation of a specific statute, Indiana Code Section 24-4-7-5(b), which

states, “A principal who in bad faith fails to comply with subsection (a) shall be liable . . .

for exemplary damages in an amount no more than three (3) times the sum of the

commission owed to the sales representative.” (Emphasis added). Thus, unlike common

law punitive damages, which are entirely discretionary, a plaintiff who proves a

principal’s bad faith under this section is automatically entitled to collect up to three

times the sum of the commission.

       It is my belief that this case is controlled by our supreme court’s decision in

Obremski v. Henderson, 497 N.E.2d 909 (Ind. 1986). In that case, the court addressed

the statute authorizing an award of civil damages up to three times the amount of actual

damages sustained by victims of certain crimes.1 Among other things, the court held:

               [I]t is also true that a plaintiff need not establish his right to
               recover treble damages by clear and convincing evidence.
               The appropriate standard is preponderance of the evidence.
               Our appellate courts have understood the legislature to intend
               that the trebling of actual damages under Ind.Code § 34-4-30-
               1 is mandatory. A recovery of treble damages under this
               section is regarded as distinct from recovery of common law
               punitive damages.

Obremski, 497 N.E.2d at 911 (citations omitted).


1
  At the time of the Obremski decision, the relevant statute was Indiana Code Section 34-4-30-1. The
crime victims treble damages statute is now codified at Indiana Code Section 34-24-3-1.
                                                 8
      I cannot discern why a different rule should apply to an award of treble damages

under the Indiana Sales Representative Act. Like the crime victims statute, an award of

exemplary damages is mandatory; “shall be liable” should be construed as a mandate to

award those damages.      See State, Indiana Civil Rights Comm’n v. Indianapolis

Newspapers, Inc., 716 N.E.2d 943, 947 (Ind. 1999). The treble damages are a matter of

statutory entitlement, not common law discretion. If the legislature had intended these

exemplary damages to be controlled by punitive damages limitations, it could have

expressly said so, but it did not. Thus, I conclude that the limitations on awards of

common law punitive damages, including the requirement of proof by clear and

convincing evidence, do not apply to these statutory damages.




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