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                                         Jun 30 2014, 10:08 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEY FOR APPELLEE:

RONALD E. WELDY                                     WILLIAM T. ROSENBAUM
Weldy & Associates                                  Rosenbaum Law, P.C.
Indianapolis, Indiana                               Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

CHERYL RODRIGUEZ,                                   )
                                                    )
       Appellant-Plaintiff,                         )
                                                    )
               vs.                                  )      No. 49A02-1307-PL-639
                                                    )
SOUTHERN DUNES GOLF, LLC,                           )
                                                    )
       Appellee-Defendant.                          )


                      APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Patrick L. McCarty, Judge
                             Cause No. 49D03-0704-PL-17019


                                           June 30, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Cheryl Rodriguez appeals a judgment for Southern Dunes Golf, LLC (Southern

Dunes). As Southern Dunes was not Rodriguez’s employer1 at the time she earned the

commissions she wishes to collect, we affirm.

                            FACTS AND PROCEDURAL HISTORY

          On June 1, 2004, Rodriguez began her employment with Southern Dunes as a Banquet

Manager. She was paid $12.00 per hour. In November 2004, Rodriguez was promoted to

Special Events Coordinator. As Special Events Coordinator, Rodriguez was paid $505 per

week in salary and was entitled to 12.5% of the gratuity charge on food and beverage sales of

the events she booked and planned. Until October 15, 2005, Southern Dunes paid Rodriguez.

          On October 16, 2005, Najem Catering took over Southern Dunes’ food and beverage

catering and received all the income and gratuities for events that took place after that date.

Prior to this transition, Rodriguez and her supervisor, Brian Garrett, met with Mr. Najem to

discuss the transition from Southern Dunes to Najem Catering. Najem Catering increased

Rodriguez’s salary to $550 per week and her gratuity remained the same. Between October

15, 2005, and November 1, 2005, when her employment was terminated, Najem Catering

paid Rodriguez.

          Rodriguez booked a variety of events while working at the Southern Dunes.

Sometimes these events were scheduled a year or two in advance. When Najem terminated

Rodriguez, many of the events she booked had not yet taken place. Rodriguez filed a claim

asserting Southern Dunes owed her $3,574.12 in sales commissions from the events she


1
    Because we so hold, we need not address whether Southern Dunes and Najem Catering are joint employers.

                                                     2
booked that occurred after her termination. The trial court entered judgment in favor of

Southern Dunes after concluding Southern Dunes could not be responsible for Rodriguez’s

unpaid sales commissions.

                             DISCUSSION AND DECISION

       The trial court sua sponte made findings of fact and conclusions of law regarding the

identity of Rodriguez’s employer at the time of her termination. In this situation,

       the specific findings control our review and the judgment only as to the issues
       those specific findings cover. Where there are no specific findings, a general
       judgment standard applies and we may affirm on any legal theory supported by
       the evidence adduced at trial.
               We apply the following two-tier standard of review to sua sponte
       findings and conclusions: whether the evidence supports the findings, and
       whether the findings support the judgment. Findings and conclusions will be
       set aside only if they are clearly erroneous, that is, when 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 consider only the evidence favorable to the judgment and all
       reasonable inferences flowing therefrom, and we will neither reweigh the
       evidence nor assess witness credibility.

Trust No. 6011, Lake County Trust Co. v. Heil’s Haven Condominiums Homeowners Ass’n,

967 N.E.2d 6, 14 (Ind. Ct. App. 2012), trans. denied.

       When an employer separates an employee from payroll, “the unpaid wages or

compensation of such employee shall become due and payable at regular payday for pay

period in which separation occurred.” Ind. Code § 22-2-9-2. As Southern Dunes was not

Rodriguez’s employer at the time of her termination, it is not the appropriate party for

Rodriguez to pursue.

       The trial court found:


                                               3
       24. Najem Catering assumed all responsibility for food and beverage catering
       through the Southern Dunes Banquet Hall from October 16, 2005 until April 9,
       2007.
       25. At some point prior to October 15, 2005, Brian Garrett and Cheryl
       Rodriguez met with Mr. Najem to discuss the transition of food and beverage
       responsibility from Southern Dunes Golf, LLC to Najem Catering.
       26. . . . Cheryl Rodriguez understood that Najem Catering was responsible for
       food and beverage service for all events, and Ms. Rodriguez directed the host
       or event sponsor to make their payment for food and beverage services to
       Najem Catering.
       27. Ms. Rodriguez also received her paychecks from Najem Catering
       beginning in October, 2005.
       ...
       29. From and after October 16, 2005, Najem Catering received all revenue
       from food and beverage sales for Banquet Hall events and received all
       gratuities for such events.

(App. at 8-9.) The trial court concluded Najem Catering was Rodriguez’s employer from

October 16, 2005, until her time of termination. (Id. at 9.)

       In a civil action, a claimant need prove by only a preponderance of the evidence that

the defendant committed the act alleged. French-Tex Cleaners, Inc. v. Cafaro Co., 893

N.E.2d 1156, 1166 (Ind. Ct. App. 2008). Rodriguez presented into evidence her employment

letter for becoming a Banquet Manager, (Pl.’s Ex. 1), invoices of the events she booked,

(Pl.’s Ex. 3), a calculation of her unpaid commissions (Pl.’s Ex. 4), a letter from the Indiana

Department of Labor indicating the Department of Labor gave her permission to pursue the

claim, (Pl.’s Ex. 5), and an earnings statement from Southern Dunes from November 2004.

(Pl.’s Ex. 7.) All that evidence was related to events before Najem Catering took over

operations. Southern Dunes presented into evidence pay stubs Najem Catering issued to

Rodriguez after it took over operations. (Def.’s Ex. A.) These pay stubs indicate Najem

Catering paid Rodriguez both her salary and her commission.(Id.) Rodriguez testified that at

                                              4
the meeting Mr. Najem had with the employees he said that “we would be working for him

now—or with him now[,]” (Tr. at 38), which indicates she knew there was a transition in

employers. Rodriguez’s arguments to the contrary are invitations for us to reweigh the

evidence, which we cannot do. See Trust No. 6011, Lake County Trust Co., 967 N.E.2d at 14

(stating evidence cannot be reweighed on appeal).

       Rodriguez argues her claim, as to commissions due for events booked before the

employer transition, is against Southern Dunes because she earned her sales commissions

upon booking an event. However, the trial court found the “gratuity was charged on the food

and beverage total, and not on the rental fee for the banquet facility.” (App. at 7.) The

charge on food and beverages was not made until the event occurred because, according to

testimony, changes were sometimes made less than ten days before the event occurred. (Tr.

at 35.) The invoices that Rodriguez presented support finding the gratuity was charged only

to the total of the food and beverage order. (Pl.’s Ex. 3.) Therefore, Rodriguez did not earn

any sales commission until after the events took place, which was after the transition to

Najem Catering.

       This evidence supports the trial court’s findings, and the findings support the

conclusion Najem Catering was Rodriguez’s employer at the time of her termination.

Therefore, the trial court did not err in finding Southern Dunes was not responsible for the

sales commissions Rodriguez wishes to collect. Accordingly, we affirm.

       Affirmed.

VAIDIK, C.J., and RILEY, J., concur.


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