                                                                         Sep 16 2015, 9:43 am




      ATTORNEY FOR APPELLANT                                      ATTORNEY FOR APPELLEE
      Michael L. Einterz, Jr.                                     Robert S. Rifkin
      Einterz & Einterz                                           Maurer Rifkin, P.C.
      Zionsville, Indiana                                         Carmel, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA
      R.L. Turner Corporation,                                   September 16, 2015

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 06A05-1411-PL-540
              v.                                                 Appeal from the Boone Superior
                                                                 Court
      William Wressell,                                          The Honorable Matthew C.
                                                                 Kincaid, Judge
      Appellee-Plaintiff,
                                                                 Cause No. 06D01-1201-PL-11




      Bradford, Judge.



                                            Case Summary
[1]   Appellee-Plaintiff William Wressell brought a claim against his employer

      Appellant-Defendant R.L. Turner Corporation (“RLTC”) alleging that he did

      not receive wages he was entitled to under the Indiana Common Construction

      Wage Act (“CCWA”). The trial court found that RLTC provided insufficient

      fringe benefits to meet the minimum wage requirements of the CCWA and

      Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015               Page 1 of 28
      awarded Wressell compensatory damages for the unpaid fringe benefits as well

      as statutory treble damages. The trial court also awarded attorney’s fees to

      Wressell pursuant to the fee shifting provision of the Indiana Wage Payment

      Statute.


[2]   On appeal, RLTC raises several issues which we consolidate and restate as

      follows: (1) whether the CCWA can form the basis for a private cause of action;

      (2) whether the trial court erred in finding that RLTC provided insufficient

      fringe benefits to meet the minimum requirements of the CCWA; and (3)

      whether the trial court erred in awarding attorney’s fees to Wressell. Wressell

      argues on appeal that the trial court erred in failing to consider his overtime

      hours in calculating the amount of wages he was entitled to. We affirm the

      judgment of the trial court; however, we remand with instructions that the trial

      court award Wressell additional damages for overtime compensation.



                             Facts and Procedural History
[3]   Wressell filed a claim against RLTC on January 5, 2012 for unpaid wages.

      (App. 20-23) In December of 2012, the trial court granted a motion for

      summary judgment in favor of RLTC. That decision was reversed by this court

      on appeal in Wressell v. R.L. Turner Corporation, 988 N.E.2d 289 (Ind. Ct. App.

      2013), trans. denied. We have previously outlined the facts of this case, the

      relevant portions of which are as follows:

              Between September 15, 2009, and June 20, 2010, RLTC employed
              Wressell as a skilled cement mason. Wressell worked on two projects

      Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015   Page 2 of 28
        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”).
        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….
        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 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 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

Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015        Page 3 of 28
        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 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 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 was 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[.]
                 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



Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015           Page 4 of 28
                 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….
        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.



Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015          Page 5 of 28
                  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 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.
Wressell, 988 N.E.2d at 292-96 (footnotes omitted).1




1
  Much of the litigation prior to this appeal focused on Wressell’s job classification. Under the CCWA, a
worker’s job title (mason, carpenter, laborer, etc.) corresponds to a different pay scale. However, because
neither party has appealed the trial court’s decision regarding Wressell’s job classification, we have not
included the facts from the prior appeal regarding that issue.


Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015                         Page 6 of 28
[4]   The trial court granted RLTC’s June 29, 2012 motion for summary judgment.

      On appeal, we concluded that there were genuine issues of material fact

      regarding, among other things, whether Wressell was paid sufficiently for fringe

      benefits. Id. at 298. As such, we reversed the trial court’s order of summary

      judgment and remanded for further proceedings on “whether RLTC properly

      paid Wressell for fringe benefits.” Id.


[5]   After the case was remanded, the trial court held a bench trial in which it made

      the following findings and conclusions:

              17. The Court FINDS that 100% of the hours worked by Wressell on
              the Gatewood and Informatics projects was as a skilled cement mason.
              …
              21. For the Gatewood Project, the Court FINDS that Wressell was
              entitled to be paid $24.25 per hour plus $10.68 in fringe benefits.
              22. For the Informatics Project, the Court FINDS that Wressell was
              entitled to be paid $21.75 per hour plus fringe benefits of $8.52 per
              hour.
              23. RLTC’s pay records show that Wressel was paid $18,344.98 in
              base wages on the Gatewood Project and $12,044.50 in base wages for
              his work on the Informatics Project for total wages (excluding fringe
              benefits) of $30,389.48.
              24. The parties agree that RLTC provided Wressell with the following
              fringe benefits which may be credited to RLTC’s fringe benefit
              obligation to Wressell:
                       1. Premium payments for health insurance                     $1,991.76
                       2. Premium payments for dental insurance                     $140.22
                       3. Premium payments for group life insurance                 $25.02
                       4. Premium payments for accidental death and
                          dismemberment insurance                                   $5.94
                       5. Premium payments for short term disability

      Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015               Page 7 of 28
                 insurance                                                    $56.62
                 6. Premium payments to fund an employee
                    assistance program of at least                            $11.40
                 7. Paid time off (PT)                                        $260.00
                 8. Payment for three (3) holiday                             $624.00
                 9. Payments made by Company to a third party
                    to comply with COBRA requirements                         $5.10
                 TOTAL                                                        $3,119.96
        25. The Court FINDS that Wressell received no other fringe benefits
        meaning compensation of economic value to him.
        26. RLTC as a matter of internal cost accounting allocated certain
        costs to Wressell which were required to be incurred to complete the
        projects, but these are not fringe benefits to Wressell.
        27. The total amount of compensation Wressell received for the
        Gatewood and Informatics projects was $33,509.44.
        28. The total amount of compensation Wressell was entitled to receive
        for the Gatewood and Informatics projects as a skilled mason was
        $37,362.26 = ((677.5 x ($24.25 + $10.68) + ((452.5) x
        ($2[1].75+$8.52)).
        29. Wressell was underpaid $3,852.82.
        30. I.C. 22-2-5-2 provides as follows:
                 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, as liquidated damages for such failure, pay to
                 such employee for each day that the amount due to him
                 remains unpaid ten percent (10%) of the amount due to him in
                 addition thereto, not exceeding double the amount of wages
                 due, and said damages may be recovered in any court having
                 jurisdiction of a suit to recover the amount due to such
                 employee, and in any suit so brought to recover said wages or
                 the liquidated damages for nonpayment thereof, or both, the
                 court shall tax and assess as costs in said case a reasonable fee
                 for the plaintiff’s attorney or attorneys.


Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015               Page 8 of 28
              31. The Court CONCLUDES as a matter of law that it would be error
              having found unpaid wages to not award liquidated damages and a
              reasonable attorney’s fee for work performed regarding the employer’s
              failure to pay for time worked in excess of the hours paid. See Sallee
              v. Mason, 714 N.E.2d 757 [(Ind. Ct. App. 1999)].
              32. The Court CONCLUDES as a matter of law that the Wage
              Payment Statute, IC 22-2-5, governs both the frequency and amount
              an employer must pay its employee. St. Vincent Hosp. & Health Care
              Ctr., Inc. v. Steele, 766 N.E.2d 699, 2002 Ind. LEXIS 324 (2002), and
              therefore that liquidated damages and reasonable attorney fees must be
              ordered….
              It is therefore ORDERED ADJUDGED and DECREED as
              FOLLOWS:
              1. Judgment in favor of Plaintiff in the sum of $3,852.82 in damages
                  plus liquidated damages of $7,705.64 for a total of $11,558.46 and
                  against Defendant is GRANTED.
      Appellant’s App. pp. 10-13.


[6]   Following the judgment, both parties filed motions to correct error, both of

      which were denied by the trial court. Wressell then filed a petition requesting

      that RLTC be ordered to pay his attorney’s fees. On October 23, 2014, the trial

      court granted that motion with the following order.

              1. After trial on May 13 and 14, 2014, Plaintiff was awarded a
              judgment of $3,852.82 in damages plus liquidated damages of
              $7,705.64.
              2. Defendant took the position at summary judgment, at trial and up
              until its Motion to Correct Error that William Wressell was paid at
              least what he was entitled to and probably more.
              3. Plaintiff took the position that Wressell was underpaid $8,205.82.
              4. Plaintiff generally prevailed although not on all issues.
              5. The Court found, and even Defendant seems to concede by its
              Motion to Correct Error, that Defendant did not pay all of William
              Wressell’s wages.

      Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015      Page 9 of 28
        6. …
        7. I.C. § 22-2-5-1, calls for liquidated damages (already awarded) and
        reasonable attorney fees.
        8. These types of attorney fee shifting statutes can work apparent
        inequities. It can cost significantly more to vindicate one’s right than
        the value for the right impaired. So as a practical matter, the real
        winner in the quest for justice is the attorney by the fees he or she
        earns.
        9. The retort is that that is precisely the point. If an attorney cannot
        earn a fee commensurate with the significant work it takes to vindicate
        what might be a modest right or a modest injustice – $3,800 of
        underpaid wages over two years – than [sic] modest injustices will
        continue.
        10. While the fees claimed in this matter are breathtaking and giving of
        pause to their imposition, the law is the law. If reasonable fees cannot
        be earned, no lawyer will take the case.
        11. …
        12. Plaintiff’s lawyers took the case on an agreement that limits Mr.
        Wressell to a contingency fee of 40% of the judgment [or actual
        attorney’s fees awarded by settlement or by a court]. Defendant
        suggest that that agreement caps the fees. Defendnat makes a
        colorable argument but the Court rejects it.
        13. Defendants, the Court concludes, erroneously construe SCI
        Propane, LLC v. Frederick as establishing an ipso facto rule that the
        contingency fee is always the reasonable fee if it is less than some
        hourly calculation. The problem in that case, the Court finds, was that
        the estate (the client) was enriched by the fee owed. The estate was
        actually enlarged. Here, Mr. Wressell will get no such windfall. He is
        only getting his judgment and liquidated damages. The fees awarded
        in this case are flowing through him directly to his lawyers.
        14. As a matter of professional responsibility, fees must be reasonable.
        15. [Wressell’s attorneys] have totaled 349.8 hours of charged time
        over the life of the case which included defending a summary
        judgment, prevailing at an appeal, defending a transfer petition and
        prevailing at trial.



Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015        Page 10 of 28
        16. There are time entries, to Plaintiff’s attorneys’ credit, which do not
        appear to be compensated.
        17. The detail in the bills is fairly typical and is adequate to put anyone
        asked to pay them on notice of what was done by the lawyers.
        18. On any two year recapitulation there may be entries which appear
        suspect. Defendant points out 3.7 hours to review a summary
        judgment motion. This admittedly is not the best of the Plaintiff’s
        attorneys’ time entries. Defendant attacks the entries as self-serving
        and made with the incentive to boost them up.
        19. But any fee affidavit is self-serving. If there was no detailed billing
        statement attached to the fee affidavit then the complaint would be that
        there is no detail. The 3.7 hour entry contains itself less detail than
        might be desired. If a client got that bill without any other
        context around it, they might fairly question it.
        20. But in the overall context the hours billed are reasonable. The
        entries are adequately precise. It is certainly possible to spend 3.7
        hours reading and digesting a motion that would, if granted, punt your
        client’s case out of court.
        21. The Defendant makes one argument on the fee bill that carries
        some merit. Defendants filed a cross-motion for summary judgment.
        Much of this work was co-extensive with defending the Plaintiff’s
        requests for summary judgment. From reviewing the bill it looks like
        about 16.9 hours of time was focused on Plaintiff’s cross-motion. It
        did not succeed. It was filed after the Defendant’s motion. It was
        tactical in nature…. [T]he cross motion really did not advance the
        Plaintiff’s litigation forward. It was not found meritorious on appeal.
        Deducting 16.9 hours from the hours spent is reasonable.
        22. The Court does not see fit to deduct time on the discovery motion
        Defendant chatracterizes as “unsuccessful.” There was a lot of
        discovery back and forth in this matter and it was not always
        amenable. There are, during any successful litigation efforts, moments
        of failure. Overall the litigation was successful.
        23. …
        24. There is nothing offered by Defendants contrary to the reasonable
        rate [of $300 per hour] suggested by [Wressell’s] affidavits.



Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015       Page 11 of 28
              25. The Court finds that a blended rate of $300 for [Wressell’s
              attorneys] is reasonable for Boone County….
              26. Overall 332.9 hours at a reasonable rate of $300 per hour were
              necessary for Mr. Wressell to vindicate his claim.
              27. Attorney fees awarded should be and are $99,870.00
              28. Though proportionally greater than the judgment by a factor of
              nearly ten it does not enrich Plaintiff and is not unreasonable under the
              Wage Payments Statute.
              29. … Plaintiff is entitled to $137.00 to file the suit and $250.00 in
              Appellate Court costs for $387.00 total.
      Appellant’s App. pp. 209-212.



                                  Discussion and Decision
[7]   RLTC raises several issues in this appeal which we consolidate and restate as

      follows: (1) whether the CCWA can form the basis for a private cause of action;

      (2) whether the trial court erred in finding that RLTC provided insufficient

      fringe benefits to meet the minimum requirements of the CCWA; and (3)

      whether the trial court erred in awarding attorney’s fees to Wressell. Wressell

      also raises one claim of error on appeal, arguing that the trial court failed to

      consider his overtime hours in calculating the amount of compensation he was

      entitled to.


                 I. Private Cause of Action Under the CCWA
[8]   As a threshold issue, RLTC argues that the CCWA cannot form the basis for a

      private civil action. “‘Questions of statutory interpretation are questions of law

      and are reviewed de novo.’” In re Howell, 27 N.E.3d 723, 726 (Ind. 2015)

      (quoting In re Carroll Cnty. 2013 Tax Sale, 21 N.E.3d 832, 834 (Ind. 2014)).
      Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015      Page 12 of 28
[9]    As RLTC notes, the text of the CCWA does not expressly create a private cause

       of action. However, in Stampco Construction Co., Inc. v. Guffey, 572 N.E.2d 510,

       512 (Ind. Ct. App. 1991), this court held that a private cause of action could be

       brought under Indiana’s prevailing wage statute. See also Burgess v. E.L.C. Elec.,

       Inc., 825 N.E.2d 1, 16 (Ind. Ct. App. 2005); E.L.C. Elec., Inc. v. Indiana Dep’t of

       Labor, 825 N.E.2d 16, 18 (Ind. Ct. App. 2005) (acknowledging that a private

       cause of action may be brought under the CCWA). RLTC notes that the United

       States District Court for the Southern District of Indiana called Stampco

       into doubt and certified for the Indiana Supreme Court the question of whether

       such a private cause of action exists under the CCWA. Lewis v. Gaylor, Inc., 914

       F. Supp. 2d 925 (S.D. Ind. 2012). However, the case was voluntarily dismissed

       before the Supreme Court had an opportunity to consider the question. We

       acknowledge RLTC’s argument but decline to part from precedent and will

       leave any such decision to the Indiana Supreme Court.


                                            II. Fringe Benefits
[10]   RLTC claims that the trial court erred in failing to include other proffered fringe

       benefits in its calculation of total compensation and that the trial court erred in

       shifting the burden of proof on this issue from Wressell to RLTC.


                                              A. Burden of Proof
[11]   RLTC argues that trial court improperly shifted the burden of proof to RLTC

       regarding whether RLTC provided certain fringe benefits to Wressell.

       Essentially, RLTC claims that the trial court inappropriately required RLTC to


       Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015   Page 13 of 28
       prove the fringe benefits it provided Wressell instead of Wressell having to

       prove that he did not receive certain benefits. We cannot agree with RLTC’s

       characterization of the burden of proof. Their approach would essentially

       require Wressell to prove a negative by identifying benefits which he did not

       receive. We find this illogical. Wressell met his initial burden by establishing

       (1) the amount of compensation which, in his opinion, he actually received in

       wages and fringe benefits, and (2) that the amount he received was less than the

       total wages required to be paid under the CCWA to a worker of his skill level.

       In its defense, RLTC argued that Wressell received additional fringe benefits

       which, when considered with his other wages, amounted to a total

       compensation in excess of that required by the CCWA. The trial court declined

       to credit much of RLTC’s argument as to what it considered fringe benefits.

       Whether or not the trial court erred in its determination of what constitutes a

       fringe benefit is the crux of this litigation which we will examine in more detail

       below. However, the trial court did not improperly shift the burden of proof to

       RLTC.


               B. Whether the Trial Court Erred in Determining What
                             Constituted Fringe Benefits
[12]   Determining whether certain benefits provided by an employer constitute fringe

       benefits for purposes of the CCWA is a question of law. See Burgess, 825 N.E.2d

       at 10. Appellate courts evaluate questions of law de novo and owe no deference

       to a trial court’s determination of such questions. Seel v. State, 739 N.E.2d

       170, 172 (Ind. Ct. App. 2000).

       Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015   Page 14 of 28
[13]   RLTC claims that the trial court erred in failing to consider the following items

       fringe benefits: “health and welfare benefits, availability of a 401K plan2,

       training, travel per diem, benefits orientation, and benefits administration.”

       Appellant’s Br. pp. 18-19. Aside from travel per diem, RLTC only lists these

       proffered benefits by name and provides no explanation as to what these

       benefits entail, their monetary value, or why it believes they should be

       considered fringe benefits for purposes of the CCWA. As such, we address

       only the issue of whether the trial court erred in failing to include travel per

       diem as a fringe benefit.3


[14]   In Union Township School Corp. v. State ex rel. Joyce, 706 N.E.2d 183 (Ind. Ct.

       App. 1998), trans. denied, we concluded that, for purposes of the CCWA, the

       term “wages” includes 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




       2
         The parties agree that RLTC made no contributions to Wressell’s 401(k) or pension
       plan. (Tr. 136, 433)
       3
        We note that although the trial court stated that it did not consider travel per diem a
       fringe benefit for purposes of the CCWA, it appears that the trial court included travel
       per diem paid to Wressell in its calculation of overall, CCWA-eligible wages.
       Therefore, even if RLTC were to prevail on the merits of this issue, the amount
       awarded to Wressell would not change. Nevertheless, we will address the argument
       so that the trial court may remedy any possible errors on remand.

       Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015    Page 15 of 28
               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. In order to be considered a fringe benefit, there has to be a clear

       benefit to the employee. Wressell, 988 N.E.2d at 296.


[15]   RLTC’s President and CEO, Greg Turner, testified that RLTC had a policy of

       paying a travel per diem of two dollars per hour worked to employees who

       traveled more than sixty miles one-way to get to a job site. (Tr. 396-98)

       Wressell testified that when he was initially asked by his supervisor to move to

       the Gatewood Project he declined because it would cost him too much in gas to

       make the trip. (Tr. 141) Wressell agreed to work the Gatewood Project only

       after he was informed that he would be paid an additional two dollars an hour

       in travel per diem. (Tr. 141)


[16]   Following the parties’ closing statements at trial, the trial court stated that “I

       think the two dollars [an hour per diem] which comes out to $1452 [sic]

       additional to what was stipulated to is appropriate, is an appropriate fringe

       benefit but I’m not sure about the rest of it.” Tr. p. 468. However, the trial

       court later stated that it did not consider travel per diem to be a legitimate fringe

       benefit and explained its rationale for that decision as follows:

               In so finding the Court ultimately rejected the notion that Plaintiff
               received fringe benefits (including payments for gasoline to travel for
               the principal benefit of [RLTC]) beyond $3,119.96 which [RLTC] did
               provide. Had Wressell resided closer the gas money would not have
               been paid and so the same is not a fringe benefit as contemplated by
               the [CCWA]. The principal beneficiary was the employer.

       Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015       Page 16 of 28
       Appellant’s App. p. 209 n.1.


[17]   Based on the facts of this particular case, we are unpersuaded that per diem

       paid as a reimbursement for travel costs should be considered a fringe benefit

       for purposes of the CCWA. Traveling from Indianapolis to the Gatewood

       Project in Lafayette imposed a significant cost on Wressell and similarly

       situated employees. RLTC’s payment of travel per diem operated to shift a

       portion of that cost from those employees back to the company. However, the

       payments did not provide a standalone benefit to Wressell. Should Wressell

       have been injured or taken paid time off, he would be paid only his typical

       hourly wage, and would not receive per diem because he incurred no travel

       costs.


[18]   In his appellate brief, Wressell provides an insightful example which we

       paraphrase here: if an employee is required by his employer to travel by plane to

       another city for work, the employee receives no benefit when the employer

       reimburses him for the cost of the plane ticket. The airfare is simply a cost of

       doing business which the company incurs, there is no standalone benefit to the

       employee. The same logic applies here. RLTC was incurring a cost to assure

       its workers were able to travel to the job site.


[19]   We also note that the travel per diem payments had few similarities as other

       wages or benefits. Wressell did not receive per diem in the same fashion as he

       did other wages or fringe benefits, but received a tax-free cash payment at the

       end of each day as per diem. Aside from his daily work, Wressell incurred no


       Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015   Page 17 of 28
       cost in order to receive his other fringe benefits, e.g. health, dental, and life

       insurance, paid time off, and paid holidays.


[20]   This reasoning is supported by other jurisdictions which have addressed this

       issue and have declined to include travel per diem as a wage or fringe benefit

       where the per diem did not exceed the cost incurred by the employee. See

       Antillon v. N.M. State Highway Dep’t, 820 P.2d 436, 440 (N.M. Ct. App. 1991)

       (reimbursement for travel expenses is not considered part of a worker’s wage

       unless the reimbursement is in excess of the employee’s actual expenses and

       thus constitutes a real economic gain to the employee); see also Hackett v. W.

       Express, Inc., 21 A.3d 1019, 1022 (Me. 2011) (per diem payments to reimburse

       employee for travel expenses is “not includable to any extent in average weekly

       wage”). Accordingly, we affirm the trial court’s decision regarding the amount

       of fringe benefits received by Wressell for purposes of the CCWA.


                                            III. Attorney Fees
[21]   We review a trial court’s award of attorney’s fees, and the amount of any such

       award, for an abuse of discretion. Daimler Chrysler Corp. v. Franklin, 814 N.E.2d

       281, 286 (Ind. Ct. App. 2004) (citing Malachowski v. Bank One, Indpls., N.A., 682

       N.E.2d 530, 533 (Ind. 1997)). “An abuse of discretion occurs when the trial

       court’s award is clearly against the logic and effect of the facts and

       circumstances before the court.” Id. at 286-87. “An award of attorney’s fees

       will be reversed on appeal as excessive only where an abuse of the trial court’s

       discretion is apparent on the face of the record.” Id. at 287 (citing Owen v.


       Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015   Page 18 of 28
       Vaughn, 479 N.E.2d 83, 88 (Ind. Ct. App. 1985)). “We do not reweigh the

       evidence; rather, we determine whether the evidence before the trial court can

       serve as a rational basis for its decision.” DePuy Orthopaedics, Inc. v. Brown, 29

       N.E.3d 729, 732 (Ind. 2015) (citation omitted).


         A. Whether Wressell was Entitled to Attorney’s Fees Under
                     Indiana’s Wage Payment Statute
[22]   Indiana Code Section 22-2-5-2 provides that employers who fail to pay their

       employees’ wages are liable for an employee’s reasonable attorney’s fees and

       court costs incurred as a result of litigation to obtain unpaid wages. RLTC

       contends that fringe benefits should be treated differently than wages for

       purposes of the attorney fee shifting provision of Indiana’s Wage Payment

       Statute (Ind. Code § 22-2-5-1 et. seq.). For several reasons, we disagree with this

       proposition.


[23]   The purpose of the fee shifting provision is to deter employers from playing

       “fast and loose with wage obligations” by imposing treble damages and

       attorney’s fees for non-compliant employers. St. Vincent Hosp. & Health Care

       Ctr., Inc. v. Steele, 766 N.E.2d 699, 706 (Ind. 2002). Fringe benefits are a distinct

       form of compensation but are nonetheless an obligation owed to the employee

       by the employer. We have no reason to believe that the legislature did not

       intend for this deterrent scheme to extend to fringe benefits.


[24]   Furthermore, this court has previously treated employee benefits as wages in

       several different contexts. When this case was on appeal previously, we noted


       Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015   Page 19 of 28
       that “for the purposes of the CCWA, ‘wages’ include fringe benefits,” and that

       fringe benefits are “a subset of wages.” Wressell, 988 N.E.2d at 296 (citing

       Union Township School Corp., 706 N.E.2d 183). We have also determined that

       deferred benefits, such as “PTO, pension benefits, retirement savings plans,”

       etc., which have accrued during an employee’s tenure, are wages for purposes

       of the Wage Payment Statute. Taylor v. Cmty. Hospitals of Ind., Inc., 860 N.E.2d

       1200, 1203 (Ind. Ct. App. 2007). RLTC was required to compensate Wressell

       at an expressly defined rate under the CCWA and failed to do so.

       Consequently, Wressell was entitled to treble damages and attorney’s fees

       under the Wage Payment Statute.


         B. Whether the Trial Court’s Award of Attorney’s Fees was
                                Reasonable
[25]   RLTC argues that the trial court’s award of attorney’s fees was unreasonable (1)

       compared to the damages awarded and (2) because it was based on an

       unreliable calculation of actual hours worked.

[26]   In determining a reasonable amount of attorney’s fees, consideration should be

       given to the nature and difficulty of the litigation; the time, skill, and effort

       involved; the fee customarily charged for similar legal services; the amount

       involved; the time limitations imposed by the circumstances; and the result

       achieved in the litigation. See In re Eiteljorg, 951 N.E.2d 565, 573 (Ind. Ct. App.

       2011); see also Zebrowski & Assocs., Inc. v. City of Indpls., By & Through its Bd. of

       Dirs. for Utils. of its Dep’t of Pub. Utils., 457 N.E.2d 259, 264 (Ind. Ct. App. 1983).



       Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015    Page 20 of 28
                                 i. Amount Involved and Result Achieved

[27]   RLTC neglects to analyze the reasonableness of the fee award under the

       aforementioned factors and instead argues that an attorney fee award of four

       times the potential recovery is patently unreasonable. RLTC cites Ponziano

       Construction Services. Inc. v. Quadri Enterprises, LLC to suggest that limits on

       attorney’s fee awards based on potential recovery have been upheld in Indiana.

       980 N.E.2d 867, 877 (Ind. Ct. App. 2012). However, the Ponziano court was

       addressing a very narrow issue.

               The award of attorney’s fees in an action to foreclose on a mechanic’s
               lien is not an attempt to compensate the attorney for all the legal
               services performed in connection with the lien; rather, the amount of
               the award is intended to reflect the amount the lienholder reasonably
               had to expend to foreclose on the lien. Such awards should be made
               with caution so that excessive awards of attorney’s fees do not
               discourage property owners from challenging defective workmanship
               on the part of lien holders. The amount awarded as attorney’s fees
               therefore should be reasonable in relation to the amount of the
               judgment secured.
       Id. at 877 (citations omitted). Ponziano dealt with too distinct of an issue to

       provide significant support for a comparable limitation here. RLTC cites no

       other cases or statutes which support the imposition of limits to attorney’s fee

       awards based solely on the potential compensatory award.


[28]   We acknowledge the policy dilemma faced by lawmakers in striking an

       appropriate balance between (1) creating a mechanism which helps employees

       vindicate wage claims and (2) the risk of exploitation of that mechanism by

       attorneys to the detriment of employers. Our courts play a part in maintaining


       Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015      Page 21 of 28
       this balance by using the abovementioned factors to assure that all attorney’s

       fees awarded are reasonable. Despite RLTC’s argument, there is no precedent

       which provides for a definitive cap to attorney’s fee awards based on the

       potential or actual recovery. The recovery is only one consideration which the

       court may take into account when determining what amount of fees are

       reasonable. RLTC is free to lobby the legislature to promulgate such a rule but

       it is not this court’s place to do so.


[29]   In the same vein, RLTC argues that the trial court erred by failing to consider

       either the actual or potential award in its decision to award attorney’s fees.

       However, the trial court addressed both the “amount involved” and “result

       achieved” factors enunciated above. Wressell claimed that he was underpaid

       $8,205.82, (App. 209), and was ultimately awarded $3,852.82 in compensatory

       damages for unpaid wages and $7,705.64 in treble damages. The trial court

       noted that the disputed amount was relatively small, especially when compared

       to the attorney’s fees, but “[i]f an attorney cannot earn a fee commensurate with

       the significant work it takes to vindicate what might be a modest right or a

       modest injustice––$3,800.00 of underpaid wages over two years––than [sic]

       modest injustices will continue.” Appellant’s App. p. 210. The trial court’s

       reasoning echoes the purpose of the fee shifting provision; to deter employers

       from failing to pay workers their due wages. Steele, 766 N.E.2d at 706.


                                  ii. Calculation of Attorney Time Billed

[30]   Wressell’s attorney’s requested fees for 349.8 hours of work. The trial court

       found that, overall, the amount of hours worked was reasonable considering the
       Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015   Page 22 of 28
       complexity of the issues and the length of the case, which lasted several years

       and included defending and losing on summary judgment, prevailing in a 2013

       appeal in which this court overturned that summary judgment, and ultimately

       prevailing at trial. The trial court found the attorneys billing statements to be

       adequately precise and detailed. Of the over 300 hours billed, the trial court

       found only 3.7 hours to contain “less detail than might be desired.” Appellant’s

       App. p. 211. The trial court also deducted 16.9 hours from the requested

       amount for time spent on a failed cross-motion for summary judgment and

       ultimately determined the reasonable fees to be 332.9 hours at a rate of $300 per

       hour for a total of $99,870 (RLTC does not contend that the hourly rate was

       unreasonable).


[31]   RLTC makes no specific argument as to why the calculation of hours worked is

       unreasonable and instead argues only that the documents cataloguing the

       attorney’s hours worked should be viewed with skepticism because the client,

       Wressell, was not actively reviewing the accuracy of those billed hours.

       Further, RLTC argues that the trial court erred when it “accepted and awarded

       fees based on the time entries as presented.” Appellant’s Br. p. 33. However,

       as described above, the trial court conducted its own objective review of the

       time entries and, with the exception of 16.9 hours deducted for time spent on a

       failed cross-motion, found the total calculation of hours to be reasonable. As

       such, RLTC’s argument is essentially a request for this court to reweigh the

       evidence and reevaluate the credibility and accuracy of the time entries. “We

       do not reweigh the evidence; rather, we determine whether the evidence before


       Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015   Page 23 of 28
       the trial court can serve as a rational basis for its decision.” DePuy Orthopaedics,

       29 N.E.3d at 732. Based on the fact that this case has continued for nearly four

       years and is now on appeal for a second time, we think the trial court had

       ample basis for its decision on the reasonableness of the amount of hours billed

       by Wressell’s attorneys.


                                 iii. Culpability for Protracted Litigation

[32]   When determining an appropriate attorney fee award, this court has also looked

       to whether either party is responsible for unduly delaying the litigation.

       Eiteljorg, 951 N.E.2d at 573. The reason for the protracted litigation in this case

       was due, in large part, to RLTC’s reluctance to cooperate during mediation or

       during the IDOL investigation, as well as RLTC’s attempts to hinder discovery.

       IDOL stated that it was unable to resolve Wressell’s claim “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. 47. Therefore,

       litigation may have been unnecessary had RLTC cooperated with IDOL’s

       investigation. Additionally, it appears RLTC was guilty of dilatory discovery

       tactics. The trial court described the parties’ discovery as “not always

       amenable,” Appellant’s App. p. 211, and, at one point, Wressell was forced to

       file a motion to compel discovery and requesting sanctions before RLTC

       ultimately complied with certain discovery requests. (App. 4)




       Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015   Page 24 of 28
                             iv. Reasonableness of Attorney Fees - Analysis

[33]   In light of the protracted nature of this litigation, RLTC’s obstructive litigation

       behavior, the complexity of the issues, the mostly successful result achieved for

       Wressell, and the purpose behind the fee shifting provision of the Wage

       Payment Statute, we find that the trial court did not abuse its discretion in

       fashioning its attorney’s fees award. As the trial court noted, “While the fees

       claimed in this matter are breathtaking and giving of pause to their imposition,

       the law is the law. If reasonable fees cannot be earned, no lawyer will take the

       case.” Appellant’s App. p. 210. Were we to find that the fees awarded in this

       case were unreasonable solely in light of the ultimate compensatory award,

       there would be a chilling effect on the ability of injured employees to find

       attorneys willing to take their cases.


                                             C. Fee Agreement
       Finally, RLTC argues that the attorney’s fees awarded should have been limited

       to forty percent of the total award pursuant to the contingency fee arrangement

       between Wressell and his attorneys. Wressell’s attorney fee agreement reads as

       follows:


               Client agrees to pay to said Attorneys, in consideration of their
               services, a sum of money equal to the greater of: (a) forty percent
               (40%) of any and all sums received or recovered upon said claim or (b)
               actual attorney’s fees awarded by settlement or by a court of
               competent jurisdiction and paid by the Defendant.
       Appellant’s App. p. 198. RLTC argues that an award of attorney’s fees greater

       than forty percent of the recovery would be punitive in nature and provide a

       Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015   Page 25 of 28
       “windfall” to Wressell. Appellant’s Br. p. 36. This argument is without merit.

       The trial court’s award of attorney’s fees was based on the total hours worked

       by Wressell’s attorneys and will compensate the attorneys for their time spent

       on the case. In the fee agreement with his attorneys, Wressell agreed to pay

       “actual attorney’s fees awarded…by a court.” Appellant’s App. p. 198.

       Therefore, despite RLTC’s contention otherwise, Wressell will not be enriched

       in any manner by the attorney fee award because he will retain none of that

       award for himself.


                                             D. Appellate Fees
[34]   RLTC claims that, pursuant to Indiana Appellate Rule 66(E), Wressell was not

       entitled to receive attorney’s fees for appellate work or appellate court costs for

       work regarding Wressell’s appeal in 2013. Appellate Rule 66(E) provides that

       “[t]he Court may assess damages if an appeal, petition, or motion, or response,

       is frivolous or in bad faith. Damages shall be in the Court’s discretion and may

       include attorneys’ fees.” However, Wressell’s claim for attorney’s fees was

       made under Indiana Code section 22-2-5-2, not under Rule 66(E). Section 22-2-

       5-2 does not exclude appellate work from that recoverable as reasonable

       attorney’s fees. Furthermore, the Indiana Supreme Court has previously held

       that appellate attorney’s fees are properly awardable under Section 22-2-5-2. St.

       Vincent Hosp. & Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699, 706 (Ind. 2002).

       RLTC cites to no cases or statutes supporting its contention that appellate fees

       are not recoverable under Section 22-2-5-2.



       Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015   Page 26 of 28
                                                IV. Overtime
[35]   In his cross-appeal, Wressell argues that the trial court erred in failing to include

       overtime hours in its calculation of his rate of pay. RLTC did not address

       Wressell’s claim for overtime compensation in either its initial brief or reply

       brief. Failure to respond to an issue raised in an opposing party’s brief is akin to

       failing to file a brief, as to that issue. Gwinn v. Harry J. Kloeppel & Assocs., Inc., 9

       N.E.3d 687, 690 (Ind. Ct. App. 2014). Where one party fails to file an appellate

       brief, we may reverse the trial court if the appellant presents a case of prima

       facie error. Id. “Prima facie means ‘at first sight, on first appearance, or on the

       face of it.’” Id. (quoting Ponziano, 980 N.E.2d at 875.)


[36]   Indiana Code section 22-2-2-4(k) provides that “no employer shall employ any

       employee for a work week longer than forty (40) hours unless the employee

       receives compensation for employment in excess of the hours above specified at

       a rate not less than one and one-half (1.5) times the regular rate at which the

       employee is employed.” Wressell claims, and the trial court acknowledged in

       its judgment, that Wressell worked 22 hours of overtime on the Gatewood

       Project and 21.5 hours of overtime on the Informatics Project. However, the

       trial court did not include any overtime compensation in its calculation of total

       compensation Wressell is entitled to under the CCWA.


[37]   Wressell claims that he is entitled to an additional $500.56 in compensatory

       damages for the uncalculated overtime hours and a cooresponding $1,001.12 in

       additional liquidated damages pursuant to Indiana Code section 22-2-5-2.


       Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015     Page 27 of 28
       According to Wressell’s time sheets, Plaintiff’s Ex. 7, it appears that Wressell

       did work overtime on both the Gatewood and Informatics Projects and his

       calculations of the total overtime compensation are correct. Therefore,

       Wressell has established prima facie error by the trial court. We remand with

       instructions that the trial court award Wressell an additional $500.56 in

       compensatory damages and $1,001.12 in liquidated damages.


[38]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 06A05-1411-PL-540| September 16, 2015   Page 28 of 28
