MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Mar 29 2018, 9:22 am

court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher K. Starkey                                   Emily L. Connor
Shelbyville, Indiana                                     Brian L. Mosby
                                                         Littler Mendelson, P.C.
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Indiana Commissioner of Labor                            March 29, 2018
ex rel. Wendell H. Estelle,                              Court of Appeals Case No.
Appellant-Plaintiff,                                     49A05-1711-PL-2585
                                                         Appeal from the Marion Superior
        v.                                               Court
                                                         The Honorable Thomas J. Carroll,
CVS Indiana, LLC,                                        Judge
Appellee-Defendant.                                      Trial Court Cause No.
                                                         49D06-1704-PL-15605



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1711-PL-2585 | March 29, 2018             Page 1 of 3
                                         Statement of the Case
[1]   Wendell Estelle1 appeals the trial court’s order denying his motion to correct

      error following the court’s dismissal of Estelle’s complaint for damages. Estelle

      raises a single issue for our review, namely, whether the trial court abused its

      discretion when it denied his motion to correct error. We affirm.


                                  Facts and Procedural History
[2]   On April 19, 2017, Estelle, a former employee of CVS Indiana, LLC (“CVS”),

      filed a complaint alleging that CVS “failed to pay” him wages in contravention

      of Indiana Code Section 22-2-9-4. Appellant’s App. Vol. II at 6. On June 30,

      CVS filed a motion to dismiss the complaint and to compel arbitration. Estelle

      did not respond to the motion to dismiss, and on July 21, the trial court granted

      CVS’s motion. On August 21, Estelle filed a motion to correct error, which the

      trial court denied following a hearing. This appeal ensued.


                                      Discussion and Decision
[3]   Estelle appeals the trial court’s denial of his motion to correct error. We review

      the grant or denial of a Trial Rule 59 motion to correct error under an abuse of

      discretion standard. Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265,




      1
        The record is unclear whether the Indiana Commissioner of Labor brought the underlying action on behalf
      of Estelle, but the CCS names Estelle as the sole plaintiff. In addition, CVS Indiana, LLC, alleges that
      Estelle “never completed the necessary statutory prerequisites to bring this action under the Indiana Wage
      Claims Statute in the name of the Commissioner of Labor.” Appellee’s Br. at 8. Estelle does not dispute that
      assertion. In any event, our resolution of this appeal does not depend on whether Estelle or the
      Commissioner of Labor is the proper party.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-PL-2585 | March 29, 2018            Page 2 of 3
      1270 (Ind. 2008). On appeal, we will not find an abuse of discretion unless the

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

      circumstances before it or is contrary to law. Miller v. Moore, 696 N.E.2d 888,

      889 (Ind. Ct. App. 1998).


[4]   We do not reach the merits of Estelle’s appeal. First, as CVS notes, Estelle did

      not make any argument in opposition to CVS’s motion to dismiss, so Estelle

      raised arguments for the first time in his motion to correct error. Second,

      Estelle does not state on appeal what his arguments to the trial court were in

      support of his motion to correct error, he has not provided us with a copy of his

      motion in his appendix, and he has not provided us with a copy of the

      transcript of the hearing on his motion. Thus, we have no way to know

      whether he made the same arguments to the trial court in support of his motion

      that he raises on appeal. It is well settled that a party may not raise an issue for

      the first time in a motion to correct error or on appeal. Troxel v. Troxel, 737

      N.E.2d 745, 752 (Ind. 2000). Estelle has waived our review of the trial court’s

      denial of his motion to correct error.


[5]   Affirmed.


      Robb, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1711-PL-2585 | March 29, 2018   Page 3 of 3
