      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                 FILED
      this Memorandum Decision shall not be                             Mar 27 2018, 8:35 am
      regarded as precedent or cited before any
                                                                             CLERK
      court except for the purpose of establishing                       Indiana Supreme Court
                                                                            Court of Appeals
      the defense of res judicata, collateral                                 and Tax Court

      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
      Paul C. Sweeney                                          Richard D. Trainor
      Derek R. Molter                                          Law Office of Richard D. Trainor
      Ice Miller LLP                                           Michigan City, Indiana
      Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      AmeriGlobe, LLC,                                         March 27, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               46A05-1708-PL-1845
              v.                                               Appeal from the LaPorte Superior
                                                               Court 2
      Victor Althoff,                                          The Honorable Richard L.
      Appellee-Plaintiff.                                      Stalbrink, Jr., Judge
                                                               Trial Court Cause No.
                                                               46D02-1303-PL-361



      Mathias, Judge.

[1]   AmeriGlobe, LLC (“AmeriGlobe”) appeals the judgment of the LaPorte

      Superior Court in favor of Victor Althoff (“Althoff”) in Althoff’s complaint

      alleging breach of an employment contract and seeking damages under the

      Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018      Page 1 of 27
      Indiana Wage Claims Statute. On appeal, AmeriGlobe presents three issues,

      which we consolidate, reorder, and restate as the following two: (1) whether the

      trial court erred in denying AmeriGlobe’s motion for summary judgment on

      grounds that Althoff’s claims under the Wage Claims Statute are barred

      because Althoff failed to submit his claim to the Indiana Department of Labor

      until after he had already filed his complaint; and (2) whether the trial court

      clearly erred in determining that AmeriGlobe breached an employment contract

      with Althoff.


[2]   We reverse and remand.


                                   Facts and Procedural History
[3]   The basic facts underlying this case are relatively undisputed. Althoff was a

      veteran sales representative, with over thirty years of experience selling a variety

      of products, including filtration bags and bulk bags.1 In the first half of 2010,

      Althoff worked for a competitor of AmeriGlobe. But when he learned that the

      company that he then worked for might be sold, he became concerned about his

      job security and started looking for other sales positions. Althoff was familiar

      with AmeriGlobe and reached out to its co-owner and president, Dan Schnaars

      (“Schnaars”). Schnaars informed Althoff that the standard compensation for

      AmeriGlobe sales representatives was an annual salary of $36,000 plus the




      1
        “Bulk bags” are large bags made from the plastic polypropylene and are used to transport and store material
      in large quantities, e.g., salt, sand, or concrete mix.



      Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018            Page 2 of 27
      company standard commission of 2% of “list” or base price, plus 30% of

      “overage,” i.e., any price the sales representative could get over the list price.2

      This scheme incentivized sales representatives to obtain a selling price higher

      than the list price.


[4]   In recognition of Althoff’s experience, he and Schnaars came to a different

      agreement regarding Althoff’s compensation. Specifically, they agreed that

      Althoff would initially earn $6,800 per month (instead of the standard $3,000)

      and earn only one-half of the company standard commission, i.e., 1% of list

      price plus 15% of overage.3 They also agreed that Althoff’s salary would be

      reduced by $200 per month starting June 1, 2011, until it eventually reached

      $3,000. Also starting June 1, 2011, Althoff would start earning the company

      standard commission instead of one-half of the standard commission. This

      would allow Althoff to earn a more comfortable salary as he built up his sales.

      To memorialize this arrangement, the parties drafted a one-page written

      agreement which reads as follows:


               August 23, 2010
                                           Employment Agreement
                                                 Between
                                               Victor Althoff
                                                    And



      2
       Under this commission structure, for example, if the list price of a bag was $15 and the sales representative
      sold the bag to a customer for $20, then he would earn a commission of 2% of $15 ($0.30) plus 30% of the
      $5.00 overage ($1.50), for a total commission of $1.80 per bag.
      3
       Under this commission structure, for example, if the list price of a bag was $15 and the sales representative
      sold the bag to a customer for $20, then he would earn a commission of 1% of $15 ($0.15) plus 15% of the $5
      overage ($.75), for a total commission of $.90 per bag.

      Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018              Page 3 of 27
                                      AmeriGlobe, LLC

        Employment Start Date:             August 23, 2010
        Position:                          Territorial Sales Representative
        Territory:                         As defined from time to time. Initial
                                           territory includes Upper Illinois,
                                           Wisconsin, Minnesota, North and
                                           South Dakota. (Territories are not
                                           exclusive and will vary over time[.])
        Compensation Salary                Adjustable Salary and Commission.
                                           From August 23, 2010 to May 30,
                                           2011, salary will be $6800 per
                                           month with first month pro-rated
                                           according to days employed.
                                           Starting on June 1, 2011 salary will
                                           be adjusted downward by $200 per
                                           month until standard salary of
                                           $36,000 per year is reached.
        Commissions                        From August 23, 2010 until June 1,
                                           2011 commissions will be 50% of
                                           company standard. Commissions
                                           will be paid monthly according to
                                           company standards.
        Benefits                           Company Standard Health
                                           Insurance benefits[.]
        Vacation                           One week after January 1, 2011.
                                           One more week after August 23,
                                           2011. Starting January 1, 2012, Victor
                                           is eligible for 2 weeks per year.
        Expenses                           100% reimbursement for approved
                                           travel. Shared expenses based on
                                           company standards once $110,000
                                           per month in sales has been
                                           achieved for 3 consecutive months.

Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018   Page 4 of 27
              Equipment                          Company provides laptop and
                                                 printer.
              Car                                Company provides $350 per month
                                                 in car allowance.
              Exclusivity                        AmeriGlobe will be the only source
                                                 of income unless otherwise
                                                 approved in writing.
              Term of Employment                 At the discretion of AmeriGlobe
                                                 and Victor’s satisfaction.


      Appellant’s App. Vol. 2, p. 49. Although neither party signed this written

      memorialization, both parties concede that this document accurately represents

      their agreement.


[5]   At the time Althoff was hired, in addition to selling bulk bags, AmeriGlobe was

      also preparing to start marketing a new product known as the TrapBag.

      Inventor Buzz Wade (“Wade”) had contacted AmeriGlobe in May of 2010 to

      discuss the possibility of AmeriGlobe manufacturing and selling the soon-to-be-

      patented TrapBag as a large-scale flood mitigation solution. Traditional sand

      bags contain between 50 to 100 pounds of sand and are stacked to help hold

      back flood waters, but have problems with leakage between the bags. In

      contrast, TrapBags are five-sided bags that have thirty cells each and are sewn

      together to form contiguous sections, usually 100 feet long. Each 100-foot

      section of TrapBags can hold up to 200,000 pounds of sand and can be linked

      together to form miles of contiguous flood barriers. Before being filled, a 100-

      foot section of TrapBags can be compressed into just 6 feet and unfolded like an

      accordion as it is deployed and filled with sand or other filler.

      Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018   Page 5 of 27
[6]   The following image of the TrapBag system is taken from the patent

      application:




      See Ex. Vol. 3, Defendant’s Ex. Y p. 3.


[7]   Althoff first saw the TrapBag in October 2010, when he went to AmeriGlobe’s

      headquarters in Lafayette, Louisiana for training. There, he saw a product

      demonstration. Althoff began to sell bulk bags the following month and also

      began to look for opportunities to sell the TrapBag. Althoff attended trade

      shows to find potential buyers for the TrapBag. On February 14, 2011, Althoff


      Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018   Page 6 of 27
      received an order of TrapBags from the City of Fargo, North Dakota in the

      amount of $860,038.72. This was AmeriGlobe’s first sale of the TrapBag.


[8]   On February 17, 2011, Schnaars telephoned Althoff and told him that the

      commission for the TrapBag sales would be different than for bulk bags.

      Specifically, Schnaars stated that AmeriGlobe would pay sales representatives a

      flat commission on sales of the TrapBag instead of the company standard of 2%

      of list and 30% of overage, or in Althoff’s case, one half of the company

      standard. AmeriGlobe paid a 5% flat commission to Althoff for the Fargo sale,

      which amounted to $43,001.19. This was actually higher than the amount

      Althoff would have received under the one-half company standard commission

      rate for sales of bulk bags he claimed to be entitled to. Indeed, Althoff admitted

      that, under the one-half company standard commission rate, his commissions

      for the Fargo sale would have been $38,818.56.4


[9]   When Althoff received his commission statement covering the Fargo sale, he

      called Schnaars to complain. Schnaars informed him that AmeriGlobe was

      going to use a flat commission rate for the sale of TrapBags. For the first two



      4
        Althoff sold Fargo 21,120 feet of four-foot TrapBags for $490,083.72, or $23.20 per foot. The list price for
      the four-foot TrapBags was $18 per foot. Thus, under the one-half company standard commission rate,
      Althoff would have earned 1% of the list price of $18 per foot, or $3,801.60 ($18 × 21,120 feet = $380,160 ×
      1% = $3,801.60), plus 15% of the overage of $5.20 per foot, or $16,473.60 ($5.20 × 21,120 = $109,824 × 15%
      = $16,473.60) for a commission of $20,275.20 for the four-foot bags. See Tr. Vol. 2 p. 161–62. Althoff also
      sold Fargo 10,560 feet of six-foot TrapBags for $370,000, or $35.04 per foot. The list price for the six-foot
      TrapBags was $25, for an overage of $10.04 per foot. Under the one-half company standard commission,
      Althoff would have earned 1% of the list price of $25 per foot, or $2,640 ($25 × 10,560 = $264,000 × 1% =
      $2,640), plus 15% of the overage of $10.04, or $15,903.36 ($10.04 × 10,560 = $106,022.40 × 15% =
      $15,903.36) for a commission of $18,543.36 for the six-foot bags. See id. Thus, under the one-half company
      standard, Althoff would have earned a commission of $38,818.56.

      Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018             Page 7 of 27
       sales, the flat rate was 5%, and for most others, it was 4%. Schnaars explained

       that there were two main reasons for not using the company standard

       commission for the TrapBag. First, the TrapBag was used in emergency

       situations, and AmeriGlobe did not want to have in place a commission that

       encouraged its sales representatives to get the highest possible price in such

       situations. AmeriGlobe is based in Louisiana, and Schnaars had heard of

       companies being sued as a result of price gouging during the aftermath of

       Hurricane Katrina. Second, AmeriGlobe had to split its profits on the TrapBag

       equally with Wade. Althoff later testified that, when informed of the change in

       the commissions for the TrapBag, he had two choices: “I could quit. I could

       continue to work.” Tr. Vol. 2, p. 150. Althoff continued to work.


[10]   In April 2011, Althoff sold 5,280 feet of four-foot trap bags to Cass County,

       North Dakota, for $140,701.22, or $26.64 per foot. AmeriGlobe paid Althoff a

       flat commission of 5%, or $7,035.06. Under the one-half company standard

       commission rate Althoff claims should have been used, he would have received

       a commission of $7,793.28.5 Thus, Althoff claims that AmeriGlobe owes him

       an additional $758.22 for this sale.

[11]   At some point after this sale, AmeriGlobe changed the flat commission rate for

       sales of the TrapBag to 4%, but Althoff continued to earn the one-half company



       5
        The list price of the four-foot TrapBags was $18. Althoff’s overage for this sale was $8.64 per foot ($26.64
       − $18 = $8.64). Under the one-half company standard commission, Althoff would have earned a commission
       of 1% of the list price, or $950.40 ($18 × 5,280 = $95,040 × 1% = $950.40), plus 15% of the overage, or
       $6,842.88 ($8.64 × 5,280 = $45,619.20 × 15% = $6,842.88). Thus, Althoff’s total commission under a one-
       half company standard would have been $7,793.28.

       Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018           Page 8 of 27
       standard commission on sales of bulk bags. On June 15, 2011, Althoff sold

       9,500 feet of four-foot TrapBags to Burleigh County, North Dakota for

       $334,590, or $35.22 per foot. AmeriGlobe paid Althoff a flat 4% commission of

       $13,383.60 on this sale. The commission payable at the one-half company

       standard would have been $26,248.50,6 a difference of $12,864.90.


[12]   In July 2011, Althoff sold to the North Dakota Department of Emergency

       Services 21,900 feet of four-foot TrapBags for a price of $711,318, or $32.48 per

       foot, and 2,200 feet of six-foot TrapBags for $116,226, or $52.83 per foot.

       AmeriGlobe paid Althoff a commission of only $8,533.36 on this $827,544 sale,

       which is considerably less than even the 4% AmeriGlobe claims was the

       commission rate for all TrapBag sales.7 By this time, under the terms of the

       Employment Agreement, Althoff would have been earning the full company

       standard commission rate of 2% of list price plus 30% of overage, or

       $122,485.40.8 Accordingly, Althoff claims that AmeriGlobe still owes him

       $113,952.04 in commissions for this sale.




       6
        Since the list price for the four-foot TrapBag was $18, Althoff’s overage on this sale was $17.22. One
       percent of the list price was $1,710 ($18 × 9,500 = 171,000 × 1% = $1,710), plus 15% of the overage of
       $24,538.50 ($17.22 × 9500 = $163,590 × 15% = $24,538.50), for a total of $26,248.50.
       7
        In fact, this constitutes 1.03% of the total sales price. Four percent of $827,544 is $33,101.76. Accordingly,
       even under the 4% flat commission, AmeriGlobe underpaid Althoff $24,568.40 for this sale.
       8
         The overage for the sale of the four-foot bags was $14.48 ($32.48 − $18.00). Using the company standard
       commission rate, the commission for the sale of the four-foot bags would have been 2% of list price, or $7,884
       ($18 × 21,900 = $394,200 × 2% = $7,884), plus 30% of overage, or $95,133.60 ($14.48 × 21,900 = $317,122
       × 30% = $95,133.60), for a total commission of $103,017.60 for the four-foot bags. For the six-foot bags, the
       overage was $27.83 ($52.83 − $25.00). Using the company standard commission rate, the commission for the
       sale of the six-foot bags would have been 2% of list price, or $1,100 ($25 × 2,200 = $55,000 × 2% = $1,100),


       Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018               Page 9 of 27
[13]   Also in July 2011, Althoff sold to the Iowa Department of Transportation

       49,400 feet of four-foot TrapBags for a total price of $1,976,000, or $40 per foot.

       AmeriGlobe paid Althoff a commission of $70,080.9 Under the company

       standard commission Althoff claims he should have paid, he would have

       earned a commission of $343,824.10 Thus, Althoff claims AmeriGlobe still owes

       him $273,744 in commissions for this sale.


[14]   Lastly, on July 15, 2011, Althoff sold 6,000 feet of four-foot TrapBags to the

       State of Nebraska for a price of $211,320, or $35.22 per foot. AmeriGlobe paid

       Althoff a 4% commission of $8,452.80. The commission payable at the

       company standard rate would have been $33,156.00.11 Thus, Althoff claims that

       AmeriGlobe owes him the difference of $24,703.20.


[15]   On August 11, 2011, AmeriGlobe terminated Althoff’s employment, citing his

       failure to provide requested paperwork and failing to travel to company

       headquarters when asked.12 During this term of employment, Althoff was paid



       plus 30% of overage, or $18,367.80 ($27.83 × 2,200 = $61,266 × 30% = $18,367.80), for a total commission
       of $19,467.80 on the six-foot bags. The total commission for this sale would have been $122,485.40.
       9
         We note that 4% of $1,976,000 is $79,040.00, not $70,080. AmeriGlobe’s commission statement shows that
       it paid no commission on one of the invoices that was part of this order, amounting to a $8,960 shortfall.
       10
         The overage for this sale was $22 ($40 − $18). Using the company standard commission rate, the
       commission for the sale of these bags would have been 2% of list price, or $17,784 ($18 × 49,400 = 889,200 ×
       2% = $17,784), plus 30% of overage, or $326,040 ($22 × 49,400 = $1,086,800 × 30% = $326,040), for a total
       commission of $343,824.
       11
         The overage for this sale was $17.22. Under the company standard overage, Althoff’s commission for this
       sale would have been 2% of list price, or $2,160 ($18 × 6,000 = $108,000 × 2% = $2,160), plus 30% of
       overage, or $30,996 ($17.22 × 6,000 = 103,320 × 30% = $30,996), for a total commission of $33,156.
       12
         Althoff alleged that AmeriGlobe terminated him so that it would not have to pay the full amount of the
       commissions owed on the TrapBag sales, but the trial court rejected this contention.

       Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018          Page 10 of 27
       $317,000. Even though he was terminated, AmeriGlobe also paid Althoff a

       bonus of $41,000.


[16]   Althoff’s unemployment did not last long. Just a few weeks after terminating

       him, Schnaars telephoned Althoff and rehired him on September 12, 2011.

       During this second period of employment, AmeriGlobe agreed to pay Althoff a

       base salary of $180,000 and a 4% commission on gross sales over $1,000,000.

       Althoff focused on training other sales representatives to sell the TrapBag. On

       September 24, 2012, just over a year after being rehired, AmeriGlobe again

       terminated Althoff’s employment. Althoff does not claim he is owed any

       additional amount for this period of employment.


[17]   Once again, Althoff’s unemployment did not last long, as AmeriGlobe rehired

       him yet again in November 2012 on a commission-only basis. This lasted until

       January 13, 2013, when Althoff’s employment was terminated for the third and

       final time.13


[18]   On March 1, 2013, Althoff filed a complaint alleging that AmeriGlobe had

       violated the Indiana Wage Claims Statute and that AmeriGlobe was unjustly

       enriched by underpaying Althoff’s commissions. AmeriGlobe’s answer

       included a defense that Althoff had not exhausted his administrative remedies

       under the Wage Claims Statute and that Althoff’s claim under the Wage Claims




       13
          Althoff’s complaint alleged that he was owed an additional $33,000 in commissions for this period, but the
       trial court found against Althoff on this claim, and Althoff does not cross-appeal the trial court’s resolution of
       this matter.

       Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018               Page 11 of 27
       Statute was barred by a two-year statute of limitations. Althoff admitted during

       discovery that he had not filed a claim against AmeriGlobe with the Indiana

       Department of Labor but denied that this was required.


[19]   AmeriGlobe subsequently moved for summary judgment on Althoff’s claim

       under the Wage Claims Statute, arguing that it was entitled to judgment as a

       matter of law due to Althoff’s failure to exhaust his administrative remedies.

       Althoff opposed summary judgment, claiming that he was not required to

       exhaust his administrative remedies because the Department of Labor would

       not pursue a claim in excess of $6,000. He also claimed that pursuing an

       administrative remedy would therefore be futile, as his claim was well in excess

       of this amount. Althoff further argued that he had cured any failure to exhaust

       his administrative remedies by attempting to submit his claim to the

       Department of Labor’s online portal on October 9, 2013, only to have this

       attempt rejected due to the amount involved. He also argued that the trial court

       could still hear a claim for breach of contract and unjust enrichment.


[20]   AmeriGlobe argued in reply that the $6,000 limit is for assigning claims to the

       Department of Labor and does not limit who must first submit claims to the

       Department of Labor to be investigated and vetted. It also argued that

       submitting the claim to the Department of Labor would not have been futile, as

       the Department was statutorily required to investigate the claim and, if

       warranted, appoint private counsel to pursue the claim. AmeriGlobe also noted

       that Althoff’s complaint did not include a claim for breach of contract.



       Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018   Page 12 of 27
[21]   The trial court held a summary judgment hearing on March 28, 2014, and took

       the matter under advisement. On November 25, 2014, the trial court entered an

       order granting AmeriGlobe’s motion, agreeing with AmeriGlobe that Althoff

       had not exhausted his administrative remedies. The trial court determined that

       “[t]he purpose of the Indiana Wage Claims Act’s requirement that claims first

       be brought to the Department of Labor . . . is to create a barrier to claims to be

       filed in court, and [a] claim must work its way through proper channels, the

       [Department of Labor] and, if need be, [the] Attorney General, before it may be

       brought into court.” Appellant’s App. Vol. 2, p. 93. The trial court ordered

       Althoff to “formally file his claim with the Department of Labor and exhaust all

       administrative remedies before further pursuing this matter in court.” Id. at 5.


[22]   On December 23, 2014, Althoff, now represented by new counsel, filed a

       consolidated motion for “Rehearing, Reconsideration, and Reinstatement of

       Count I, Request for Leave to Amend the Complaint or Alternatively, Motion

       for Certification of Interlocutory Order.” Id. at 95–97. In his motion, Althoff

       averred that he had, as ordered, submitted an application for a wage claim to

       the Department of Labor on November 26, 2014,14 and the Department

       determined that it could not accept the assignment of his claim. Instead, the

       Department authorized Althoff to pursue his claim with a private attorney. Id.

       at 103. Althoff’s motion argued that his wage claim should be reinstated. It also

       requested leave to amend his complaint to add a claim for breach of contract


       14
        In his Appellee’s Brief, Althoff claims that he submitted his claim with the Department of Labor on
       December 1, 2014.

       Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018         Page 13 of 27
       claim. Alternatively, it requested that the trial court certify its summary

       judgment order for interlocutory review.


[23]   The trial court held a hearing on Althoff’s consolidated motion on March 23,

       2015, and on June 23, 2015, the court entered an order which granted Althoff’s

       motion for leave to amend his complaint to add a claim for breach of contract,

       denied the motion to certify its order for interlocutory appeal, and ordered

       Althoff to submit a new wage claim to the Department of Labor. The trial court

       determined that Althoff had not given the Department of Labor an opportunity

       to investigate his claim or refer it to the Attorney General until he submitted his

       application on November 26, 2014. Thus, the court concluded that Althoff had

       not exhausted his administrative remedies and that his wage claim was invalid.

       The trial court ordered Althoff to file a new wage claim with the Department of

       Labor.


[24]   On July 17, 2015, Althoff submitted another application for wage claim to the

       Department of Labor. On July 31, 2015, the Attorney General’s office wrote to

       Althoff authorizing him to pursue his wage claim and authorizing his counsel

       to represent him on this claim. Id. at 192. On August 4, 2015, the Department

       of Labor sent Althoff a letter “authorizing [him] to pursue this matter with a

       private attorney licensed in the State of Indiana.” Id. at 190.


[25]   On August 11, 2015, Althoff filed an amended complaint with four counts. The

       first count alleged a breach of the 2010 employment agreement; the second

       count alleged a breach of his 2012 agreement to return to work for AmeriGlobe;


       Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018   Page 14 of 27
       the third count alleged unjust enrichment; and the fourth count asserted a claim

       under the Indiana Wage Claims Statute. The complaint requested

       compensatory damages, liquidated damages, attorney fees, and costs. Althoff

       alleged that AmeriGlobe owed him $520,000 in unpaid commissions for the

       employment period between August 23, 2010 and August 9, 2011, and $33,000

       in unpaid commissions for the employment period between November 2012

       and January 14, 2013.

[26]   AmeriGlobe filed its answer to the amended complaint on August 31, 2015,

       asserting that the wage claim was barred by the statute of limitations.

       AmeriGlobe also moved for partial summary judgment on the issue of the

       statute of limitations. The trial court held a hearing on this motion on March

       17, 2017, and entered an order denying the motion on March 21, 2017.


[27]   The trial court held a two-day bench trial on March 28–29, 2017. AmeriGlobe

       requested that the trial court enter specific findings and conclusions under

       Indiana Trial Rule 52. The parties submitted proposed findings and conclusions

       on April 28, 2017, and the trial court entered its findings of fact and conclusions

       of law on July 19, 2017. The trial court concluded that AmeriGlobe owed

       Althoff $421,836.73 in unpaid commissions, and it doubled those damages

       under the penalty provision of the Wage Claims Statute. The trial court further

       held that AmeriGlobe was liable to Althoff for an unspecified amount of court

       costs and attorney fees. On August 15, 2017, the court certified its order as a

       final, appealable order pursuant to Trial Rule 54(B), finding that there is no just

       reason to delay the entry of judgment. AmeriGlobe now appeals.

       Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018   Page 15 of 27
                                   I. Summary Judgment on Wage Claim

[28]   AmeriGlobe contends that the trial court erred when it denied its motion for

       summary judgment, which was based on AmeriGlobe’s contention that Althoff

       had failed to exhaust his administrative remedies before filing his claim under

       the Wage Claims Statute.15 On appeal from a trial court’s ruling on a motion for

       summary judgment, we apply the same standard as the trial court. M.S.D. of

       Martinsville v. Jackson, 9 N.E.3d 230, 235 (Ind. Ct. App. 2014), trans. denied.

       That is, we consider only those facts that the parties designated to the trial court

       to determine whether there is a genuine issue as to any material fact and

       whether the moving party is entitled to judgment as a matter of law. Id. We

       construe all factual inferences in favor of the non-moving party and resolve all

       doubts as to the existence of a material issue against the moving party. Id. The

       moving party bears the burden of making a prima facie showing that there are no

       genuine issues of material fact and that the moving party is entitled to judgment

       as a matter of law. Id. Once the movant makes this prima facie showing, the

       burden shifts to the non-moving party to designate and produce evidence of

       facts showing the existence of a genuine issue of material fact. Id. Still, the party

       appealing a summary judgment decision bears the burden of persuading this

       court that the grant or denial of summary judgment was erroneous. Id. Where




       15
          The Wage Claims Statute is applicable to employees who have been separated from work by their
       employer and employees whose work has been suspended as a result of an industrial dispute. St. Vincent Hosp.
       & Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699, 705 (Ind. 2002) (citing Ind. Code § 22-2-9-2). In contrast, the
       Wage Payment Statute references current employees and those who have voluntarily left employment Id.
       (citing Ind. Code § 22-2-5-1(b)). Here, Althoff proceeds only under the Wage Claims Statute.

       Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018                Page 16 of 27
       the facts are undisputed and the issue presented is a pure question of law, we

       review the matter de novo. Id.


[29]   AmeriGlobe argues that Althoff’s failure to submit his complaint to the Indiana

       Department of Labor before he filed suit bars his claim. AmeriGlobe’s

       argument has support. For example, in St. Vincent Hospital & Health Care Center,

       Inc. v. Steele, 766 N.E.2d 699 (Ind. 2002), our supreme court analyzed the Wage

       Payment Statute and the Wage Claims Statute. With regard to the latter, the

       court explained:

                  Claimants who proceed under this statute may not file a complaint with
                  the trial court. Rather, the wage claim is submitted to the Indiana
                  Department of Labor. It then becomes “the duty of the
                  commissioner of labor to enforce and to insure compliance with
                  the provisions of this chapter, to investigate any violations of any
                  of the provisions of this chapter, and to institute or cause to be
                  instituted actions for penalties and forfeitures provided under this
                  chapter.” I.C. § 22-2-9-4(a). To that end, the commissioner “may
                  hold hearings to satisfy himself as to the justice of any claim, and
                  he shall cooperate with any employee in the enforcement of any
                  claim against his employer in any case whenever, in his opinion,
                  the claim is just and valid.” Id. Further, the commissioner may
                  take assignments of wage claims under $800[16] and refer wage
                  claims to the Attorney General, who may then initiate a civil
                  action on behalf of the wage claimant or refer the wage claim to a
                  private attorney. I.C. §§ 22-2-9-4(b), -5. Claimants whose lawsuits
                  have been initiated by the Attorney General or the Attorney
                  General’s designee are entitled to recover liquidated damages and



       16
            This amount has since been increased to $6,000. See I.C. § 22-2-9-5(a) (as amended by P.L.165-2007 § 2).



       Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018             Page 17 of 27
               attorney fees as set forth in Indiana Code section 22-2-5-2. I.C. §
               22-2-9-4(b).


       Id. at 705 (emphasis added).17


[30]   And in Naugle v. Beech Grove City Schools, 864 N.E.2d 1058, 1062 (Ind. 2007),

       the court held that although claimants under the Wage Payment Statute may

       proceed by filing a complaint, “the Wage Claims Statute requires that a wage

       claim be submitted to the Department of Labor for administrative

       enforcement.” Yet again, in Quimby v. Becovic Management Group., Inc., 962

       N.E.2d 1199, 1200 (Ind. 2012), the court held that “an employee who has a

       claim under the Wage Claims Statute must first exhaust an administrative

       remedy with the DOL before filing a lawsuit.” (citing I.C. § 22-2-9-4) (emphasis

       added); see also Hollis v. Def. Sec. Co., 941 N.E.2d 536, 540 (Ind. Ct. App. 2011)

       (holding that trial court properly dismissed complaint filed by plaintiff who was

       involuntarily separated from his employment where, instead of submitting his

       claim to the Department of Labor under the Wage Claims Statute, he filed suit

       under the Wage Payment Statute), trans. denied.


[31]   As this court explicitly stated Lemon v. Wishard Health Services, 902 N.E.2d 297,

       300 (Ind. Ct. App. 2009), trans. denied, “the Wage Claims [Statute]

       contemplates that a claimant must approach the [Department of Labor] before



       17
         We note that a claim for unpaid wages under the Wage Claims Statute may include a claim for unpaid
       commissions. See Ind. Code § 22-2-9-1(b) (“The term ‘wages’ means all amounts at which the labor or service
       rendered is recompensed, whether the amount is fixed or ascertained on a time, task, piece, or commission
       basis, or in any other method of calculating such amount.”).

       Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018         Page 18 of 27
       he or she is entitled to file a lawsuit in court to seek unpaid wages or penalties.”

       (emphasis added). In Lemon, the named plaintiff met the exhaustion

       requirements of the Wage Claims Statute by submitting her claim to the

       Department of Labor before she filed suit. Id. at 301. In that case, however, the

       named plaintiff sought to convert her complaint into a class action. Id. The

       question before the Lemon court was “whether the act of seeking class

       certification somehow enables the putative class members to avoid compliance

       with the statute.” Id. We answered this question in the negative. See id. at 301–02

       (“we cannot conclude that the purpose of the Wage Claims [Statute] is satisfied

       by permitting a putative class representative’s claim to act as a proxy for the

       claims of the putative class members. ”).


[32]   Still, the plaintiff in Lemon argued that even if putative class members needed a

       letter of referral from the Department of Labor to proceed with their respective

       claims, they could obtain those letters after the lawsuit was filed. Id. at 302. We

       flatly rejected this claim, noting that the plain language of the Wage Claims

       Statute “requires that the letter be obtained—and the administrative process

       followed—before the lawsuit is filed.” Id. We agreed that obtaining permission

       to sue after the complaint had already been filed would be “the emptiest of

       gestures,” and held that “to get the letter of referral after the fact would be to

       render the statute a nullity, which we cannot and will not do.” Id. (emphasis

       added).


[33]   We are therefore compelled to agree with AmeriGlobe that the trial court erred

       in denying its motion for partial summary judgment on Althoff’s claims under

       Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018   Page 19 of 27
       the Wage Claims Statute. The Wage Claims Statute, as interpreted by our

       supreme court clearly requires that a complainant obtain the permission of the

       Department of Labor and/or Attorney General before filing suit under the Wage

       Claims Statute. And we held in Lemon that a plaintiff may not seek such

       permission after having already filed suit, which is precisely what the trial court

       permitted here.


[34]   We also note that a two-year statute of limitations applies to claims made under

       the Wage Claims Statute. Lemon, 902 N.E.2d at 302 (citing Ind. Code § 34-11-2-

       1).18 Althoff did not submit any claim with the Department of Labor until

       November 26, 2014. This is more than two years after August 11, 2011, when

       AmeriGlobe terminated Althoff’s employment and the latest date his claim

       under the Wage Claims Statute could have accrued. Thus, even if Althoff could

       have cured his failure to exhaust his administrative remedies by submitting his

       claim to the Department of Labor after having already filed suit, he did not do

       so until after the applicable statute of limitations had expired.


[35]   Althoff argues that a ten-year statute of limitations should apply because his

       claim was based on a written contract. See I.C. § 34-11-2-1 (excepting actions

       based on written contracts from two-year statute of limitations). Assuming

       Althoff’s breach of contract claim may be based on a written contract, his claim




       18
          Indiana Code section 34-11-2-1 provides, “An action relating to the terms, conditions, and privileges of
       employment except actions based upon a written contract (including, but not limited to, hiring or the failure
       to hire, suspension, discharge, discipline, promotion, demotion, retirement, wages, or salary) must be
       brought within two (2) years of the date of the act or omission complained of.”

       Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018            Page 20 of 27
       under the Wage Claims Statute is not. See Lemon, 902 N.E.2d at 302 (holding

       that claims under the Wage Claims Statute are subject to the two-year statute of

       limitations set forth in Indiana Code section § 34-11-2-1); see also Reel v. Clarian

       Health Partners, Inc., 917 N.E.2d 714, 720 n.5 (Ind. Ct. App. 2009) (noting that

       claims under the Wage Claims Statute are subject to a two-year statute of

       limitations), trans. denied.19


[36]   Because Althoff did not submit his claim under the Wage Claims Statute to the

       Department of Labor until after he had already filed suit, and well after the

       applicable statute of limitations had run, the trial court should have granted

       AmeriGlobe’s motion for summary judgment on Althoff’s claims under the

       Wage Claims Statute. We therefore reverse the trial court’s judgment on

       Althoff’s claim under the Wage Claims Statute.20


                                             II. Breach of Contract

[37]   AmeriGlobe also argues that the trial court erred in granting judgment in favor

       of Althoff on his claim that AmeriGlobe breached its employment agreement



       19
          Both parties agree that the written employment agreement embodied the terms of their agreement.
       However, this document was not signed by either party. In a “hypertechnical” sense, then, the terms of the
       parties’ contract was an “oral adoption” of the terms stated in the written agreement. See Knutson v. UGS
       Corp., 526 F.3d 339, 341 (7th Cir. 2008) (noting that where document titled “Compensation Program”
       contained no space for signatures and was unsigned, it was merely a statement of terms, and that the contract
       between the employer and employee was therefore “an oral adoption of the terms stated in” the written
       terms). But whether the contract between the parties here was written or oral does not alter our conclusion.
       The fact remains that his claim under the Wage Claims Statute is subject to a two-year statute of limitations.
       20
         Because we conclude that the trial court erred in awarding damages under the Wage Claims Statute, we
       need not address AmeriGlobe’s argument that the trial court further erred by awarding double damages
       without a finding of bad faith.



       Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018            Page 21 of 27
with Althoff.21 When a trial court enters findings and conclusions pursuant to

Indiana Trial Rule 52, we apply a two-tiered standard of review on appeal.

Anderson v. Ivy, 955 N.E.2d 795, 800 (Ind. Ct. App. 2011), trans. denied. We first

determine whether the evidence supports the findings. Id. Second, we determine

whether the findings support the judgment. Id. “‘In deference to the trial court’s

proximity to the issues, we disturb the judgment only where there is no

evidence supporting the findings or the findings fail to support the judgment.’”

Id. (quoting Smith v. Smith, 938 N.E.2d 857, 860 (Ind. Ct. App. 2010)). We do

not reweigh the evidence, and we consider only the evidence favorable to the

trial court’s judgment. Id. The party appealing the trial court’s judgment must

establish that the findings are clearly erroneous. Id. Findings of fact are clearly

erroneous when the record lacks any reasonable inference from the evidence to

support them, and the trial court’s judgment is clearly erroneous if it is

unsupported by the findings and the conclusions which rely upon those

findings. Infinity Products, Inc. v. Quandt, 810 N.E.2d 1028, 1031 (Ind. 2004). We

do not defer to conclusions of law, which are evaluated de novo. Anderson, 955

N.E.2d at 800.




21
  Ameriglobe makes no argument that a claim under the Wage Claims Statute was Althoff’s exclusive
remedy. Even if it did, we are unable to find any authority to suggest that an employee plaintiff may not
plead alternative theories of relief, i.e., both a claim under the Wage Claims Statute and a claim for breach of
contract. To the contrary, our research has revealed cases in which plaintiffs brought claims for a breach of
contract and under the Wage Claims Statute, and nothing in these cases suggests that this is impermissible or
that a claim under the Wage Claims Statute is an exclusive remedy. See e.g., Sheaff Brock Inv. Advisors, LLC v.
Morton, 7 N.E.3d 278, 285 (Ind. Ct. App. 2014), trans. denied; Herremans v. Carrera Designs, Inc., 157 F.3d 1118,
1122 (7th Cir. 1998).



Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018              Page 22 of 27
[38]   AmeriGlobe claims that because Althoff was an at-will employee, it could

       change the terms of his employment, including the commission rate, and if

       Althoff continued to work after being informed of this change in employment

       terms, he tacitly agreed to them. AmeriGlobe’s position has support in case

       law.22


[39]   For example, in Wheeler v. Balemaster, 601 N.E.2d 447 (Ind. Ct. App. 1992),

       Wheeler, the employee, worked for the employer as a salesman. At the time he

       started, the employer had a written incentive plan which stated that

       commissions would be paid after shipment of the order. Id. at 448. Later,

       however, the employer altered the commission plan to make payment of

       commission contingent upon employment with the company; that is, it would

       not pay commission on a sale if the salesperson was not still employed with the

       company, even if that salesperson had made that particular sale. Wheeler

       objected to this change, but nevertheless continued to work for the employer

       until he resigned to run a competing business. Pursuant to its revised policy, the

       employer did not pay Wheeler for any commissions on orders that shipped after

       he left. Wheeler then filed a complaint to recover the unpaid commissions. The




       22
          Althoff argues that AmeriGlobe waived this argument by failing to present it to the trial court. We
       disagree. Althoff admits that AmeriGlobe’s argument before the trial court was that the written employment
       agreement “did not entitle Mr. Althoff to the same commission rate structure for Trap bag sales. . . and [that]
       Ameriglobe was free to change the commission rate.” Appellee’s Br. at 19. This is essentially the same
       argument AmeriGlobe presents on appeal. That AmeriGlobe did not cite to the same particular cases, or that
       it has cited new authority to support its position, is not fatal to its claim on appeal. See Moryl v. Ransone, 4
       N.E.3d 1133, 1136 (Ind. 2014) (“Questions within the issues and before the trial court are before the appellate
       court, and new arguments and authorities may with strict propriety be brought forward.”).

       Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018             Page 23 of 27
       trial court granted summary judgment in favor of the employer. Wheeler

       appealed, but this court made short work of Wheeler’s argument, writing:


               This Court has held that, when an employer unilaterally changes
               agreed-upon employment terms, the employee may either (1)
               accept the changes and continue employment under the new
               terms or (2) reject the changes and quit work. Although
               [Wheeler] objected to the revised incentive plan, he continued to
               work for Employer for over six months before voluntarily
               resigning; therefore, he must abide by the revised plan.


       Id. (citing Quillen v. Review Bd. of Ind. Emp’t Security Div., 468 N.E.2d 238, 241

       (Ind. Ct. App. 1984)).


[40]   And in Todd v. Stewart, 566 N.E.2d 1077 (Ind. Ct. App. 1991), trans. denied, the

       plaintiff Todd was hired in 1983 by the defendant Stewart to work as a legal

       secretary for his law office and title insurance company. The parties originally

       agreed that Todd would be entitled to a bonus. But in May 1987, Stewart

       announced that he was cancelling the bonus agreement. Todd told Stewart that

       this was unacceptable but nevertheless continued to work for Stewart until July

       1987, when he terminated her employment. Todd filed suit seeking damages,

       including for the unpaid bonus. On appeal, we held that the trial court did not

       err in denying recovery for the bonus after Stewart unilaterally cancelled it. Id.

       at 1079 (citing Quillen, 468 N.E.2d at 241). The court noted that, although Todd

       did not agree to, and in fact protested, the change, she continued to work for

       Stewart after he announced the change. She was therefore bound by the new

       terms of her employment. Id.; see also Sweet v. Indianapolis Jet Ctr., Inc., 918 F.


       Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018   Page 24 of 27
       Supp. 2d 801, 807 (S.D. Ind. 2013) (citing Wheeler for the proposition that, in

       the absence of an enforceable employment contract, the employer could change

       the terms of the employment and that when the employee was presented with a

       new salary, he could either accept it or resign).


[41]   At first blush, these cases might appear to be distinguishable in that, here, there

       was a written employment agreement. However, that agreement was

       terminable at the discretion of either party. See Appellant’s App. Vol. 2, p. 49

       (term of employment was at the discretion of either AmeriGlobe or Althoff).

       Indeed, Althoff himself testified on direct examination by his own counsel that

       his employment was “at will,” meaning “[t]hat I could quit. They could fire

       me.” Tr. Vol. 2, p. 108. Thus, despite having written down the terms of

       Althoff’s employment, Althoff was still an at-will employee. Accordingly, when

       AmeriGlobe informed Althoff that it was unilaterally changing the terms of his

       employment, i.e., that the commission rate for sales of the TrapBag would be a

       flat 4%, he had two choices under Indiana law: he could quit, or he could

       continue to work, thereby accepting the new terms of his employment. Wheeler,

       601 N.E.2d at 448. Althoff admittedly chose the latter, as he testified on direct

       examination:


               Q.      Now, after [Schnaars] told you that that’s what he was
                       going to pay you, in your mind, what choices did you
                       have?
               A.      I could quit. I could continue to work.
               Q.      And did you continue to work?
               A.      Yes, I did.

       Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018   Page 25 of 27
       Tr. Vol. 2, p. 150.


[42]   Thus, when Althoff continued to work after AmeriGlobe changed the terms of

       his employment, he effectively agreed to new terms of employment and he must

       abide by the revised terms. Wheeler, 601 N.E.2d at 448; Todd, 566 N.E.2d at

       1077. These revised terms were a 4% flat commission on the sales of the

       TrapBag and the company standard commission on bulk bags. Althoff’s claim

       that he is owed the company standard commission on sales of the TrapBag

       therefore fails.


[43]   We note, however, that even under AmeriGlobe’s unilaterally revised terms of

       a 4% commission on TrapBag sales, AmeriGlobe underpaid Althoff by

       $33,528.40. See notes 7, 9 supra. Accordingly, although the trial court erred as a

       matter of law in concluding that Althoff was entitled to the commission rate set

       forth in the written agreement, Althoff is entitled to $33,528.40, which

       represents the 4% commission that AmeriGlobe unilaterally changed and which

       Althoff agreed to by continuing to work for AmeriGlobe.23 We therefore reverse

       the trial court’s award of damages for breach of the employment agreement and

       remand for entry of judgment in favor of Althoff in the amount of $33,528.40.




       23
         Absent some other arrangement, when an employer makes an agreement to provide compensation for
       services, the employers right to this compensation vests when the employee renders the service, and the
       employee is entitled to be compensated pursuant to the terms of employment in effect at the time the service
       was rendered. Sheaff Brock, 7 N.E.3d at 284 (citing Highhouse v. Midwest Orthopedic Institute, P.C., 807 N.E.2d
       737 (Ind. 2004); Wells Fargo Ins., Inc. v. Land, 932 N.E.2d 195, 200 (Ind. Ct. App. 2010)). Thus, Althoff was
       entitled to a 4% commission for sales of the TrapBag when he completed the sales transactions.

       Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018              Page 26 of 27
                                                 Conclusion
[44]   The trial court erred by denying AmeriGlobe’s motion for partial summary

       judgment on Althoff’s claims under the Wage Claims Statute, as Althoff did not

       submit his wage claim to the Department of Labor and receive permission to

       file his claim before he filed suit against AmeriGlobe. Althoff’s action of

       submitting his claim to the Department of Labor after he filed suit does not

       remedy his failure to do so before having filed suit. The trial court also erred as

       a matter of law in concluding that Althoff was entitled to the commission rate

       set forth in the written employment agreement. Because Althoff was admittedly

       an at-will employee, AmeriGlobe could unilaterally change the terms of

       Althoff’s employment. When AmeriGlobe did so, Althoff had two options

       under Indiana law: quit, or continue to work under the new terms. By

       continuing to work for AmeriGlobe, Althoff effectively agreed to the new

       commission structure. Althoff is, however, entitled to $33,528.40, which

       represents the 4% commission rate that AmeriGlobe unilaterally imposed and

       to which Althoff agreed by continuing to work for AmeriGlobe. We therefore

       reverse the judgment of the trial court and remand for entry of judgment in

       favor of Althoff in the amount of $33,528.40.


[45]   Reversed and remanded.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A05-1708-PL-1845 | March 27, 2018   Page 27 of 27
