MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                        FILED
court except for the purpose of establishing                               Apr 16 2019, 6:15 am

the defense of res judicata, collateral                                          CLERK
                                                                           Indiana Supreme Court
estoppel, or the law of the case.                                             Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Christopher K. Starkey                                    Gregory W. Guevara
Shelbyville, Indiana                                      Tyler J. Moorhead
                                                          Bose McKinney & Evans LLP
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Indiana Commissioner of Labor,                            April 16, 2019
on the Relation of Heather                                Court of Appeals Case No.
Chamness,                                                 18A-PL-1617
Appellant-Plaintiff,                                      Appeal from the Hamilton Circuit
                                                          Court
        v.                                                The Honorable Paul A. Felix,
                                                          Judge
J.D. Byrider Systems, LLC,                                Trial Court Cause No.
Appellee-Defendant.                                       29C01-1705-PL-5002




Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PL-1617 | April 16, 2019                     Page 1 of 8
                                        Statement of the Case
[1]   The Indiana Commissioner of Labor, on behalf of Heather Chamness, (“the

      Commissioner”) appeals the trial court’s order that it pay $3,950 in attorney’s

      fees to J.D. Byrider Systems, LLC (“J.D. Byrider”) after the court dismissed the

      Commissioner’s wage claim against J.D. Byrider because the claim was

      groundless. The Commissioner raises three issues for our review, which we

      consolidate and restate as whether the trial court erred when it ordered the

      Commissioner to pay J.D. Byrider’s attorney’s fees. We affirm.


                                  Facts and Procedural History
[2]   On March 29, 2017, the Commissioner filed a complaint for damages against

      J.D. Byrider. In the complaint, the Commissioner alleged that J.D. Byrider had

      failed to pay Chamness her wages in a timely fashion. In particular, the

      complaint alleged as follows:


              5.    Chamness started working for [J.D.] Byrider [o]n or about
              January 2010.


              6.       [J.D.] Byrider fired Chamness on or about 12 April 2017.


              7.       [J.D.] Byrider owed Chamness a commission when it fired
              her.


              8.     [J.D.] Byrider informed Chamness that it would not pay
              her the commission until she returned a company cellular phone.


              9.    [J.D.] Byrider paid Chamness that commission by
              envelope postmarked 1 May 2017.
      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1617 | April 16, 2019   Page 2 of 8
              10. Chamness did not receive the commission until 4 May
              2017.


              11.      The gross amount of commission was $3,290.00.


              12.      This commission was legally a “wage” under Indiana law.


              13. After her termination, the next pay date for Chamness was
              21 April 2017.


              14. Pursuant to [Indiana Code Section] 22-2-9-2, all wages
              [J.D.] Byrider owed Chamness were due on the next pay date
              following her termination.


      Appellant’s App. at 10.


[3]   On July 3, J.D. Byrider’s attorney emailed the Commissioner’s attorney and

      requested the Commissioner to “voluntarily dismiss” the complaint because

      “[t]he Indiana Court of Appeals has already ruled that payments under a

      similar . . . incentive plan do not constitute statutory ‘wages’ under Indiana’s

      wage payment laws . . . .” Id. at 16 (citing Quezare v. Byrider Fin., Inc., 941

      N.E.2d 510 (Ind. Ct. App. 2011), trans. denied). J.D. Byrider’s attorney

      concluded that there was “no valid, good faith basis to continue to litigate these

      claims” and that, if the Commissioner did not voluntarily dismiss the lawsuit,

      J.D. Byrider would seek recovery of its attorney’s fees. Id. at 18.


[4]   The Commissioner did not respond to the July 3 email. On July 26, J.D.

      Byrider filed its answer and counterclaim in which it alleged that the

      Commissioner’s complaint was “frivolous, unreasonable,
      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1617 | April 16, 2019   Page 3 of 8
      vexatious, . . . groundless” and “being litigated in bad faith” because, as a

      matter of Indiana law, the commissions complained of were not “wages.”

      Appellee’s App. Vol. II at 7. Accordingly, J.D. Byrider asked the court to

      award to J.D. Byrider reasonable attorney’s fees under Indiana Code Section

      34-52-1-1.


[5]   On August 23, J.D. Byrider’s attorney again emailed the Commissioner’s

      attorney and requested the Commissioner to “voluntarily dismiss the suit”

      under threat of a recovery of attorney’s fees. Appellant’s App. at 20. The

      Commissioner’s attorney responded that he would “consult with [his]

      client . . . with how . . . to proceed . . . .” Id. at 19. After some time with no

      further follow-up from the Commissioner, J.D. Byrider’s attorney again

      emailed the Commissioner’s attorney on November 1 and asked if the

      Commissioner was going to “voluntarily dismiss this suit.” Id. The

      Commissioner did not respond to that email.


[6]   On January 30, 2018, J.D. Byrider moved to dismiss the Commissioner’s

      complaint for failure to prosecute under Indiana Trial Rule 41(E) and to be

      awarded reasonable attorney’s fees. Thereafter, the trial court held a hearing on

      J.D. Byrider’s motion to dismiss. At the commencement of that hearing, the

      Commissioner’s attorney promptly informed the court that he had “filed the

      case,” J.D. Byrider’s attorney had then “asked me to dismiss it,” and he

      responded by “basically [doing] nothing with the case.” Tr. Vol. II at 4. The

      Commissioner’s attorney then “agree[d]” that “the case should be dismissed”

      and “apologized” to J.D. Byrider for his “dilatory actions.” Id.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1617 | April 16, 2019   Page 4 of 8
[7]   J.D. Byrider’s attorney then explained to the court his rationale for why the

      Commissioner’s complaint was frivolous or in bad faith, relying on the facts of

      Chamness’ commission as they compared to the incentive payment at issue

      before our Court in Quezare and expressly referencing Indiana Code Section 34-

      52-1-1 as the basis for his claim for attorney’s fees. The Commissioner’s

      attorney did not dispute or otherwise challenge J.D. Byrider’s assessment of

      Chamness’ commission as it related to Quezare; instead, the Commissioner’s

      attorney simply argued that, under Indiana Trial Rule 41(E), J.D. Byrider was

      entitled to its court costs but not to attorney’s fees.


[8]   At the conclusion of the hearing, the court instructed J.D. Byrider’s attorney to

      file an attorney fee affidavit. He did so, claiming $8,825 in attorney’s fees. The

      trial court then dismissed the Commissioner’s complaint, found $3,950 in

      attorney’s fees to be reasonable, and ordered the Commissioner to pay that

      amount to J.D. Byrider by March 26, 2018, which was ten days after the court’s

      order. This appeal ensued.


                                      Discussion and Decision
[9]   The Commissioner asserts that the trial court erred when it ordered the

      Commissioner to pay to J.D. Byrider $3,950 in attorney’s fees within ten days

      of the court’s order. As our Supreme Court has made clear:


              A trial court may grant an award of attorney’s fees if a litigant
              “continued to litigate the action or defense after the party’s claim
              or defense clearly became frivolous, unreasonable, or
              groundless.” Ind. Code § 34-52-1-1(b)(2) (2008). . . . [T]he trial
              court’s decision to award attorney’s fees and any amount thereof
      Court of Appeals of Indiana | Memorandum Decision 18A-PL-1617 | April 16, 2019   Page 5 of 8
               is reviewed for an abuse of discretion. A trial court abuses its
               discretion if its decision clearly contravenes the logic and effect of
               the facts and circumstances or if the trial court has misinterpreted
               the law.


       Purcell v. Old Nat’l Bank, 972 N.E.2d 835, 843 (Ind. 2012) (some citations

       omitted).


[10]   The Commissioner first asserts that the trial court abused its discretion when it

       awarded attorney’s fees to J.D. Byrider because the Commissioner’s complaint

       stated a claim. But that is beside the point. “A claim is groundless if no facts

       exist which support the legal claim relied on and presented by the losing party.”

       Id. The Commissioner cites no authority for the proposition that the

       determination of whether a claim is groundless is established merely by the

       pleadings. Indeed, Indiana Code Section 34-52-1-1(b)(2) expressly permits

       attorney’s fees for groundless claims when the plaintiff has “continued to

       litigate the action . . . after the party’s claim . . . clearly

       became . . . groundless . . . .”


[11]   Here, the Commissioner did not dispute at the final hearing before the trial

       court that post-pleading facts and law offered by J.D. Byrider showed that the

       Commissioner’s complaint was in fact “groundless.” Yet, despite that

       knowledge, the Commissioner refused to voluntarily dismiss the complaint and

       instead required J.D. Byrider to continue to employ counsel to contact the

       Commissioner and file motions and documents in the trial court. Accordingly,

       we reject the Commissioner’s first argument.


       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1617 | April 16, 2019   Page 6 of 8
[12]   The Commissioner next asserts that the trial court abused its discretion because

       Trial Rule 41(E), which permits the dismissal of actions due to the plaintiff’s

       failure to prosecute them, permits only an award of “costs” to the defendant.

       But again the Commissioner misses the mark. J.D. Byrider’s request for

       attorney’s fees in the trial court was expressly based on Indiana Code Section

       34-52-1-1, which permits an award of fees when an action on a claim is

       “frivolous, unreasonable, or groundless,” or “litigated in bad faith.” J.D.

       Byrider did not seek attorney’s fees under Trial Rule 41(E). Accordingly, we

       reject the Commissioner’s second argument.


[13]   Third, the Commissioner asserts that the award of $3,950 is unreasonable. We

       cannot agree and must instead conclude that the Commissioner’s short

       argument on this issue is merely a request for this Court to reweigh the

       evidence, which we will not do. We reject the Commissioner’s third argument.


[14]   Finally, the Commissioner asserts that the trial court abused its discretion when

       it ordered the Commissioner to pay J.D. Byrider’s attorney’s fees within ten

       days of the court’s order. According to the Commissioner, if that deadline were

       missed, the trial court could hold the Commissioner in contempt, and if the trial

       court held the Commissioner in contempt, the Commissioner could be

       imprisoned, and imprisonment for debt would violate Article 1, Section 22 of

       the Indiana Constitution. But we agree with J.D. Byrider that the ten-day

       deadline is less significant for possible contempt proceedings than it is relevant

       for a determination of when interest on the award will begin to accrue. We also



       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1617 | April 16, 2019   Page 7 of 8
       conclude that the Commissioner’s speculation as to potential future outcomes

       does not demonstrate reversible error in the award of fees itself.


[15]   In sum, we affirm the trial court’s award of $3,950 for attorney’s fees to J.D.

       Byrider.


[16]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-1617 | April 16, 2019   Page 8 of 8
