Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing                          Jun 06 2014, 8:46 am
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS:                        ATTORNEY FOR APPELLEE:

CHRISTOPHER K. STARKEY                          JAMES G. TYLER
Indianapolis, Indiana                           Tyler Law Office
                                                Tell City, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

COMMISSIONER OF LABOR ex rel                    )
VINCENT SCIALDONE and                           )
ANTIMO SCIALDONE,                               )
                                                )
       Appellants/Plaintiffs,                   )
                                                )
              vs.                               )     No. 62A01-1312-PL-548
                                                )
AN ISLAND, LLC,                                 )
                                                )
       Appellee/Defendant.                      )


                      APPEAL FROM THE PERRY CIRCUIT COURT
                           The Honorable Lucy Goffinet, Judge
                        The Honorable Karen A. Werner, Magistrate
                             Cause No. 62C01-1110-PL-498


                                       June 6, 2014

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BRADFORD, Judge
                                  CASE SUMMARY

      Appellants/Plaintiffs Antimo Scialdone and his son Vincent Scialdone worked for

Appellee/Defendant An Island, LLC, (“Island”) beginning in 2008. In the first few days

of January, 2010, Antimo was terminated and Vincent resigned his position with Island.

Appellant/Plaintiff the Commissioner of Labor filed a wage claim on behalf of the

Scialdones, claiming that they had not been paid for work performed in 2010 for Island,

for January 1 as a paid holiday, for vacation accrued in 2009, and, in Vincent’s case, a

sick day taken in 2010 prior to his resignation. Following a bench trial, the trial court

entered judgment in Island’s favor, concluding that neither Antimo nor Vincent

performed any work in 2010 for which they were not compensated, neither was entitled

to be paid for any accrued vacation time, and Vincent was not entitled to be paid for a

sick day. Appellants contend that the trial court erred in not ordering Island to pay any

2010 wages to Antimo or Vincent and in not awarding the plaintiffs’ attorney’s fees.

Finding no error, we affirm.

                      FACTS AND PROCEDURAL HISTORY

      In 2008 Island, a software development company, hired Antimo as Director of

Programming and Vincent as Junior Programmer, at yearly salaries of $120,000 and

$24,000 respectively. (Tr. 6, 8, 29, 31). At 6:34 a.m. on January 4, 2010, Island CEO

Balaji Kaveripak sent Antimo an email notifying him that his employment was

terminated. (Ex. C). On January 6, 2010, Vincent resigned from his position at Island.

(Tr. 30). Vincent was later paid for working on January 4, 2010. (Tr. 31).



                                            2
       On February 1, 2010, Antimo filed an “Application for Wage Claim” with the

Indiana Department of Labor (“DOL”), seeking to be compensated for two weeks of

untaken vacation and two days worked in 2010 prior to his termination. (Ex. 2). On

February 2, 2010, Vincent filed a wage claim with the DOL, seeking to be compensated

for two weeks of untaken vacation, one holiday (January 1, 2010) on which he also

claimed to have worked, and one sick day (January 5, 2010). (Ex. 10). Island disputed

the Scialdones’ claims, and, after failing to resolve the matter, the DOL suggested that

they file suit. (Ex. 5).

       Although the Scialdones initially filed suit in Marion County, the suit was

transferred to Perry Circuit Court on October 17, 2011. (Appellant's App. 1). On August

8, 2012, the Scialdones moved for partial summary judgment, which motion the trial

court denied on November 1, 2012. (Appellant's App. 2). On August 26, 2013, the trial

court held a hearing on the Scialdones’ claims. (Appellant's App. 3). On October 7,

2010, the trial court issued its findings and conclusions, ruling in favor of Island on all

claims. (Appellant's App. 6-13). Inter alia, the trial court concluded that neither Antimo

nor Vincent was entitled to be paid for any accrued vacation, that Antimo performed no

work in 2010 for which he was entitled to compensation, and Vincent was not entitled to

be paid for a sick day.

                            DISCUSSION AND DECISION

      Whether the Trial Court Erred in Denying the Scialdones’ Wage Claims

       The trial court entered findings of fact and conclusions of law pursuant to Indiana

Trial Rule 52. In such cases,

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      we must first determine whether the evidence supports the findings and
      second, whether the findings support the judgment. The trial court’s
      findings and conclusions will be set aside only if they are clearly erroneous,
      that is, if the record contains no facts or inferences supporting them. A
      judgment is clearly erroneous when a review of the record leaves us with a
      firm conviction that a mistake has been made. We neither reweigh the
      evidence or assess the credibility of witnesses, but consider only the
      evidence most favorable to the judgment.

Webb v. Webb, 868 N.E.2d 589, 592 (Ind. Ct. App. 2007) (citations omitted).

      Regarding Antimo’s claims that he was entitled to vacation pay and pay for time

worked on January 1 and 4, 2010, we conclude that the trial court’s judgment against him

is not clearly erroneous. Antimo testified that he was paid on or about the last day of

each month for that month’s work. (Tr. 8). Island CFO Randall Cole testified that

Island’s vacation accrual policy was that an employee only became entitled to vacation

when he had completed one full pay period beginning with each new calendar year, and

continued to accrue vacation each month on a pro rata basis throughout the year. (Tr.

59). In other words, Antimo was required to work until the end of January of 2010 to

earn one-twelfth of his vacation for that year. Antimo did not. As for Antimo’s claim

that he worked on January 1 and 4, 2010, this claim is directly contradicted by Island’s

Exhibit B, which was a weekly time sheet submitted by Antimo that showed that he did

no work on the dates in question. The trial court did not err in entering judgment against

Antimo.

      Regarding Vincent’s claims, pursuant to Island’s vacation policy, Vincent was

required to work until the end of January of 2010 in order to accrue any vacation time,

but did not. The resolution of this claim is the same as for Antimo. As for Vincent’s


                                            4
claim that he was entitled to be paid for January 1, either because it was a paid holiday or

because he worked on that day, the record indicates that January 1 was an Island holiday,

but there is no indication that it was a paid holiday. Vincent’s Exhibit 7, his job offer

from Island, indicates only that “[a]nnual holidays will consist of New Years Day, Good

Friday, Memorial Day, July 4, Labor Day, Thanksgiving, and Day after Thanksgiving,

Christmas Eve and Christmas” without indicating that the holidays were paid.

Additionally, while CFO Cole testified that employees were not expected to work on

Island holidays, nothing in his testimony indicated that Island holidays were paid

holidays.1 (Tr. 59). Vincent also claimed to have worked on January 1, 2010, in his

application for wage claim.          (Ex. 7).     In an affidavit submitted in support of the

Scialdones’ summary judgment motion, however, Vincent did not claim to have worked

that day. The record contains sufficient evidence to sustain a finding that Vincent

worked on January 4, 2010 (for which Island compensated him), but no other day that

year. Vincent’s final claim is that he was entitled to be paid for a sick day taken on

January 5, 2010, the day before he resigned. Cole testified, however, that Island had no

sick day policy and that employees were not compensated for sick days. (Tr. 71). The

trial court’s judgment against Vincent is not clearly erroneous.

        We affirm the judgment of the trial court.

RILEY, J., and ROBB, J., concur.


        1
           The trial court’s findings and conclusions do not specifically address Vincent’s claim that he
was entitled to be paid for January 1, 2010, as a paid holiday. It is well-settled, however, that “we must
affirm the trial court’s judgment if it is sustainable on any theory or basis found in the record.” In re
Marriage of Moser, 469 N.E.2d 762, 766 (Ind. Ct. App. 1984).


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