                                                                      FILED
                                                                 Jan 23 2017, 10:11 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Abraham Murphy                                             Roger P. Ralph
      Abraham Murphy Attorney at Law,                            Indianapolis, Indiana
      LLC
      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      GHPE Holdings, LLC, d/b/a                                  January 23, 2017
      Godby Heating Plumbing                                     Court of Appeals Case No.
      Electrical,                                                49A02-1601-PL-164
                                                                 Appeal from the Marion Superior
      Appellant-Defendant,                                       Court
                                                                 The Honorable Michael Keele,
              v.                                                 Judge
                                                                 Trial Court Cause No.
      Jason Huxley,                                              49D07-1406-PL-18961
      Appellee-Plaintiff.




      Barnes, Judge.


                                               Case Summary
[1]   GHPE Holdings, LLC, d/b/a Godby Heating Plumbing Electrical (“Godby”)

      appeals the trial court’s grant of summary judgment in favor of its former

      employee, Jason Huxley, in a suit brought under the Wage Payment Act


      Court of Appeals of Indiana | Opinion 49A02-1601-PL-164 | January 23, 2017             Page 1 of 18
      (“WPA”). Godby also appeals the trial court’s judgment amount against

      Huxley in a counterclaim brought by Godby. We affirm in part, reverse in part,

      and remand.


                                                      Issues
[2]   The restated issues before us are:

              I.       whether the trial court properly calculated the amount of
                       unpaid wages to which Huxley was entitled under the
                       Wage Payment Act (“the WPA”);


              II.      whether the trial court correctly calculated the base
                       amount of damages to which Godby was entitled in its
                       counterclaim against Huxley;


              III.     whether the trial court erred in not awarding treble
                       damages and attorney fees to Godby in its counterclaim
                       against Huxley; and


              IV.      whether Huxley is entitled to collect appellate attorney
                       fees.


                                                       Facts
[3]   Huxley worked for Godby between March 5, 2012, and June 14, 2013. After

      voluntarily leaving Godby’s employment, Huxley claimed Godby owed him

      $1,102.97 for hours worked plus accrued vacation time. Godby failed to pay

      that or any amount to Huxley. The last earnings statement that Godby

      provided to Huxley reflected gross wages of $1,102.97, with a deduction of

      $986.71 for vacation time Godby claimed Huxley had used but not accrued

      Court of Appeals of Indiana | Opinion 49A02-1601-PL-164 | January 23, 2017   Page 2 of 18
      before leaving employment, leaving wages of $116.26. From this amount,

      Godby made deductions of $10.88 for state, county, Medicare, and Social

      Security taxes; it also reflected “voluntary” deductions for something listed as a

      “truck” charge in the amount of $20.00 and “UNIF” charges in the total

      amount of $85.38. These deductions reduced Huxley’s net pay to $0.00.


[4]   Several months before Huxley left Godby, he was involved in an accident while

      driving a company truck. The accident resulted in damage to the truck that had

      to be repaired.1 The Godby employee manual provided that if an employee is

      determined to be at fault for an accident while on the job, he or she is

      responsible for paying the $1,000 deductible for Godby’s insurance policy.

      Godby also purchased tools that Huxley used on the job and which Huxley did

      not return to Godby after leaving his employment. Huxley also did not return

      some uniforms and a phone charger to Godby.


[5]   On June 5, 2014, Huxley filed an action under the WPA seeking recovery of the

      full $1,102.97 that he claimed Godby owed him, plus liquidated damages

      equaling twice that amount and attorney fees. Godby filed an answer denying

      that it owed any wages to Huxley. Additionally, it filed a counterclaim alleging

      that Huxley owed it $2,390.42 for the $1,000 insurance deductible, the tools, the

      uniforms, and the phone charger. Godby further claimed that Huxley’s actions

      in retaining Godby’s property and not paying the insurance deductible



      1
        The precise date of the accident is unclear. However, an estimate from the body shop that repaired the
      truck indicates that the repair work was completed on February 15, 2013. See Ex. 2.

      Court of Appeals of Indiana | Opinion 49A02-1601-PL-164 | January 23, 2017                       Page 3 of 18
      constituted theft, and therefore it was entitled to treble damages and attorney

      fees.


[6]   On April 1, 2015, Huxley filed a motion for summary judgment on his WPA

      claim. In the motion, Huxley sought only $986.71 in wages, which he claims

      represented accrued but unpaid vacation time. On May 27, 2015, counsel for

      Godby wrote a letter to Huxley’s attorney offering to consent to a judgment

      against it for the WPA claim in the base amount of $762.04, plus liquidated

      damages of twice that amount, for a total amount of $2,286.12. Godby reached

      the figure of $762.04 by deducting from $1,102.97 amounts for Indiana income

      taxes, Marion County taxes, Medicaid taxes, and Social Security taxes, plus

      “voluntary” deductions for “HSABC” (which apparently is insurance of some

      kind), “truck” charges, and a “uniform” charge. App. pp. 31, 33. The

      deductions for state and county taxes and Medicaid and Social Security totaled

      $114.61, with the remaining deductions totaling $226.32, for a grand total of

      $340.93.


[7]   Huxley refused Godby’s offer. On December 14, 2015, the trial court held a

      combined hearing on Huxley’s motion for summary judgment and a bench trial

      on Godby’s counterclaim. Thereafter, the trial court granted summary

      judgment in Huxley’s favor on his WPA claim, awarding him the requested

      base amount of $986.71, plus liquidated damages of two times that amount—

      $1,973.42—and attorney fees of $6,775.00. On the counterclaim, the trial court

      awarded Godby a total of $1,557.73 for Huxley’s retention of the tools,

      uniforms, and phone charger. It did not award Godby the $1,000.00 insurance

      Court of Appeals of Indiana | Opinion 49A02-1601-PL-164 | January 23, 2017   Page 4 of 18
      deductible. It also did not award Godby treble damages or attorney fees.

      Godby now appeals. Additional facts will be provided as needed.


                                                    Analysis
                                                 I. WPA Claim

[8]   The first issue before us is whether the trial court properly calculated the

      amount of unpaid wages to which Huxley was entitled. The trial court granted

      summary judgment in favor of Huxley on this issue. When reviewing a grant of

      summary judgment, we must draw all reasonable inferences in favor of the non-

      moving party and will affirm only “‘if the designated evidence shows that there

      is no genuine issue as to any material fact and that the moving party is entitled

      to judgment as a matter of law.’” Siner v. Kindred Hosp. Ltd. P’ship, 51 N.E.3d

      1184, 1187 (Ind. 2016) (quoting Ind. Trial Rule 56(C)). We must assure that

      the losing party was not improperly prevented from having its day in court. Id.

      “Indiana’s distinctive summary judgment standard imposes a heavy factual

      burden on the movant to demonstrate the absence of any genuine issue of

      material fact on at least one element of the claim.” Id. Cases hinging on

      disputed material facts are by definition inappropriate for summary judgment

      and must be resolved at trial. Id. at 1188.


[9]   Godby does not now dispute that it improperly withheld the supposedly-

      unearned vacation pay from Huxley’s last paycheck and that his gross pay

      should have equaled $1,102.97. Additionally, Godby does not challenge

      awarding Huxley an additional amount equaling two times the amount of pay


      Court of Appeals of Indiana | Opinion 49A02-1601-PL-164 | January 23, 2017   Page 5 of 18
       he was owed. However, it does contend that under the WPA, Huxley was

       owed only $762.04 in net wages, after taking deductions for taxes and for other

       “voluntary” deductions.


[10]   Under the WPA, employers generally must pay each employee at least

       semimonthly or biweekly, and not more than ten days after the wages have

       been earned. Ind. Code § 22-2-5-1. “However, if an employee voluntarily

       leaves employment, either permanently or temporarily, the employer shall not

       be required to pay the employee an amount due the employee until the next

       usual and regular day for payment of wages, as established by the employer.”

       Id. If an employer does not make a timely wage payment, the WPA authorizes

       the employee to file suit seeking recovery of the wages, plus an award of

       attorney fees and costs and liquidated damages of up to two times the amount

       of the unpaid wages. I.C. § 22-2-5-2.2


[11]   Because the WPA is a penal statute that is in derogation of the common law, it

       must be strictly construed. E & L Rental Equip., Inc. v. Bresland, 782 N.E.2d

       1068, 1070 (Ind. Ct. App. 2003). The WPA governs both the frequency and the

       amount an employer must pay its employee. Skillman v. Ivy Tech Cmty. Coll., 52

       N.E.3d 11, 13 (Ind. Ct. App. 2016), trans. denied. In other words, an employer

       cannot avoid the penalty provisions of the WPA by paying its employee an




       2
        The WPA applies to persons, such as Huxley, who keep or quit their jobs, while the Wage Claims Act
       applies to those who are fired, laid off, or on strike. Walczak v. Labor Works-Ft. Wayne LLC, 983 N.E.2d 1146,
       1149 (Ind. 2013).

       Court of Appeals of Indiana | Opinion 49A02-1601-PL-164 | January 23, 2017                        Page 6 of 18
       amount less than that agreed to by the parties. See St. Vincent Hosp. & Health

       Ctr., Inc. v. Steele, 766 N.E.2d 699, 704 (Ind. 2002).


[12]   No Indiana case or statute addresses whether “wages” due under the WPA

       post-termination is the gross wages due to the employee or the net wages after

       tax deductions. Godby states in its brief that it “firmly believes that it was

       clearly under a legal duty to withhold certain sums from Huxley’s last paycheck

       for tax purposes.” Appellant’s Br. p. 10. We agree with this proposition. The

       withholding of federal income taxes from an employee’s wages by the

       employer, in accordance with regulations promulgated by the Secretary of the

       Treasury, is mandated by 26 U.S.C. § 3402(1). The Internal Revenue Service

       and federal courts have determined that awards of improperly-withheld back

       pay following termination of employment are subject to mandatory tax

       withholding. See Gerbec v. United States, 164 F.3d 1015, 1026 (6th Cir. 1999)

       (holding wages of employees who successfully recovered back pay following

       wrongful termination were subject to FICA withholding); Rev. Rul. 72-572,

       1972-2 C.B. 535 (1972) (“A payment made by a company in settlement of a

       discrimination claim brought against it by an employee whose services were

       terminated by the company is ‘wages’ for purposes of the FICA, FUTA, and

       income tax withholding.”). Similarly, in Indiana, “[i]ncome tax is assessed on

       the wages of employees, but it is the employer who must ‘deduct, retain, and

       pay’ the tax to the government.” Indiana Dep’t of State Revenue v. Safayan, 654

       N.E.2d 270, 272 (Ind. 1995) (citing I.C. § 6-3-4-8(a)). In light of this clear

       federal and state authority mandating employer withholding of tax obligations


       Court of Appeals of Indiana | Opinion 49A02-1601-PL-164 | January 23, 2017   Page 7 of 18
       from an employee’s “wages,” we hold that an employer complies with the

       WPA if it deducts mandatory tax withholding obligations from an employee’s

       wages, whether such withholding occurs during or after the employee’s term of

       employment.


[13]   In the present case, Godby sought to withhold a total of $340.93 from Huxley’s

       final paycheck. Of that amount, $114.61 was for payment of Indiana state and

       county taxes, Medicare taxes, and Social Security taxes; $226.32 of that amount

       was for so-called “voluntary” deductions for “HSABC” (which apparently is

       insurance), “truck” charges, and a “uniform” charge. App. pp. 31, 33. Godby

       has not made any argument or directed us to any designated evidence in

       support of properly withholding this $226.32 for purposes of the WPA.3 This is

       a crucial omission, because there is very detailed and specific statutory language

       regarding how and when an employer may make “voluntary” deductions from

       an employee’s wages. We have summarized those provisions as follows:

                [Indiana Code Section] 22-2-6-1(a) states that “[a]ny direction
                given by an employee to an employer to make a deduction from
                the wages to be earned by said employee, after said direction is
                given, shall constitute an assignment of the wages of said
                employee.” [Indiana Code Section] 22-2-6-2 provides that to be
                valid, an assignment of wages must be in writing, signed by the
                employee, revocable at any time by the employee upon written
                notice to the employer, and agreed to in writing by the employer.
                An executed copy of the assignment must be delivered to the



       3
         There is a “Payroll Deduction Authorization” form in the record, but it does not specify that it applies to
       the charges listed on Huxley’s earnings statement, except for possibly uniform charges. Ex. 9.

       Court of Appeals of Indiana | Opinion 49A02-1601-PL-164 | January 23, 2017                         Page 8 of 18
               employer within ten days after its execution. Finally, the
               assignment must be made for one of the purposes described in
               [Indiana Code Section] 22-2-6-2(b), which includes items like
               paying insurance premiums or union dues, and purchasing shares
               of the employer’s stock . . . .


       E & L Rental Equip., 782 N.E.2d at 1071. Without any argument or citation to

       authority or the record as to how or whether the $226.32 in “voluntary”

       deductions from Huxley’s wages were taken in accordance with these statutes,

       we conclude Godby has waived any claim to have properly deducted that

       amount. See Morris v. BioSafe Engineering, Inc., 9 N.E.3d 195, 199 n.2 (Ind. Ct.

       App. 2014) (citing Ind. Appellate Rule 46(A)(8)(a)) (holding argument was

       waived for failing to support arguments with cogent reasoning or citation to

       authority), trans. denied.


[14]   Thus, we conclude that Godby was entitled to withhold mandatory tax

       deductions from Huxley’s final paycheck, but it has not established that it was

       entitled to withhold the so-called “voluntary” deductions. Here, however,

       Huxley only sought, and the trial court only awarded him, a base amount of

       $986.71 in wages. This reflected the full amount of his vacation pay, not the

       full amount of his wages, but without any deductions for taxes from that

       amount. This court lacks the necessary information to calculate what amount

       of taxes should have been deducted from that amount. Also, by only seeking

       $986.71, Huxley did essentially concede that Godby properly took deductions

       from his $1,102.97 gross pay of $10.88 for state, county, Medicare, and Social

       Security taxes, and “voluntary” deductions for something listed as a “truck”

       Court of Appeals of Indiana | Opinion 49A02-1601-PL-164 | January 23, 2017   Page 9 of 18
       charge in the amount of $20.00 and “UNIF” charges in the total amount of

       $85.38. These tax and “voluntary” deductions do not square with the

       deductions Godby believes it is now entitled to make.4


[15]   We reverse the granting of summary judgment to Huxley to the extent the trial

       court awarded him the full $986.71 without accounting for mandatory tax

       deductions. We remand for a calculation of that amount, taking into

       consideration that $10.88 for taxes already has been deducted from Huxley’s

       wages. However, Godby has failed to establish that it was entitled to make any

       additional “voluntary” deductions from Huxley’s wages. Huxley also is

       entitled to double the net wages owed to him as liquidated damages.


[16]   Furthermore, Godby notes that it offered to settle Huxley’s claim for a base

       amount of $762.04, or $1,102.97 minus tax deductions of $114.61 and

       “voluntary” deductions of $226.32. Godby asserts that pursuant to Indiana

       Trial Rule 68, it offered Huxley the full amount to which he was entitled and,

       therefore, he should not be entitled to recover any attorney fees incurred after

       the offer was made, which was on May 27, 2015.5 However, although we do




       4
         It appears possible that the amount for taxes to be deducted from the $986.71 would be $103.73, for a net
       amount of $882.98. This would be the $114.61 Godby sought to deduct from the full wages amount of
       $1,102.97, less the $10.88 in taxes to which Huxley essentially has already conceded by only seeking $986.71.
       If Godby is agreeable to this being the correct amount of the deductions for taxes only, the trial court may
       enter judgment in the amount of $882.98 in Huxley’s favor on remand, plus double that net amount, without
       the necessity of further litigation over the matter of a few dollars.
       5
         Indiana Trial Rule 68 provides in part that if an offer of judgment is made and rejected, and “[i]f the
       judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs
       incurred after the making of the offer.” Here, Godby is not seeking recovery of costs from Huxley with
       respect to the WPA action, but instead seeks to limit the attorney fees Huxley could recover under the WPA.

       Court of Appeals of Indiana | Opinion 49A02-1601-PL-164 | January 23, 2017                      Page 10 of 18
       not yet know the precise amount to which Huxley is entitled to recover on

       remand, that amount necessarily will be no less than $872.10, or $986.71 minus

       taxes of $114.61, and most likely will be more than that amount because less

       taxes likely will be withheld. Thus, Godby has failed to establish that its offer

       of $762.04 was sufficient to satisfy Huxley’s demand and to meet the

       requirements of Trial Rule 68.


                                           II. Counterclaim—Damages

[17]   Next, Godby contends the trial court erred in only awarding it $1,557.73 on its

       counterclaim for Huxley’s retention of the tools, uniforms, and phone charger,

       and by not awarding it the $1,000.00 insurance deductible. Unlike the WPA

       claim, the trial court issued a general judgment on the counterclaim after a

       bench trial. When reviewing a general judgment issued following a bench trial,

       we will affirm if there is substantial evidence of probative value supporting the

       judgment on any legal theory. Hodges v. Swafford, 863 N.E.2d 881, 885 (Ind. Ct.

       App. 2007). “We neither reweigh evidence nor judge the credibility of

       witnesses, and we consider only the evidence most favorable to the prevailing

       party along with all reasonable inferences to be drawn therefrom.” Id.

       Additionally, Godby bore the burden of proof on its counterclaim and is

       therefore appealing a negative judgment with respect to the insurance

       deductible. See Smith v. Dermatology Assocs. of Fort Wayne, P.C., 977 N.E.2d 1, 4




       It is unclear that this fits within the language of Trial Rule 68; we need not address that issue as we find Trial
       Rule 68 does not apply here in any case.

       Court of Appeals of Indiana | Opinion 49A02-1601-PL-164 | January 23, 2017                          Page 11 of 18
       (Ind. Ct. App. 2012). “A party appealing from a negative judgment must show

       that the evidence points unerringly to a conclusion different than that reached

       by the trial court.” Id.


[18]   The “Payroll Deduction Authorization” form in the record states in part, “I

       understand that I am responsible for insurance deductibles charged to us as a

       result of any accident that is deemed to be my fault.” Ex. 9. At trial, Godby’s

       vice-president, Kevin Greisl, testified about the accident Huxley was involved

       in, the resulting repair bill of over $2000, and the $1000 insurance deductible on

       Godby’s insurance policy. Greisl testified that after Huxley quit, he decided to

       seek recovery of the deductible from Huxley when Godby was asked to pay for

       the other vehicle damaged in the accident, which Greisl stated meant that

       Huxley was at fault for the accident. Godby did not submit any documentation

       from an insurance company regarding supposed fault for the accident. Greisl

       also stated that Huxley had said that the accident occurred when another

       vehicle swerved in front of him and caused him to rear end the other vehicle.

       By contrast, Huxley testified that he passed a urine screen immediately after the

       accident and was not at fault for it. He also indicated that he was completely

       unaware that Godby wanted to collect the $1000 deductible from him until

       Godby filed its counterclaim.


[19]   There is conflicting evidence in the record as to whether Huxley was at “fault”

       for the accident as required to hold him responsible for the $1000 deductible.

       There is a lack of conclusive proof that Godby’s payment of damages to the

       other vehicle necessarily meant Huxley was at fault for the accident within the

       Court of Appeals of Indiana | Opinion 49A02-1601-PL-164 | January 23, 2017   Page 12 of 18
       meaning of the agreement between Godby and Huxley. There is also evidence

       that Huxley did not believe himself to be at fault for the accident and that

       Godby made no attempt to collect the deductible from him while he was still

       employed and until this litigation arose. Under these facts, we cannot say the

       evidence points unerringly to the conclusion that Godby is entitled to collect the

       deductible from Huxley. The trial court did not err in excluding that amount

       from the damages it awarded Godby on its counterclaim.


                      III. Counterclaim—Treble Damages and Attorney Fees

[20]   The next issue before us is whether the trial court erred in declining to order

       Huxley to pay treble damages and attorney fees to Godby on its counterclaim.

       Again, as a losing plaintiff with respect this argument, Godby is appealing from

       a negative judgment and that standard of review applies. Indiana Code Section

       34-24-3-1 permits a plaintiff who proves by a preponderance of the evidence

       that the defendant committed criminal conversion, causing pecuniary loss to

       the plaintiff, to recover the costs of a civil action, reasonable attorney’s fees, and

       up to three times actual damages. French-Tex Cleaners, Inc. v. Cafaro Co., 893

       N.E.2d 1156, 1166 (Ind. Ct. App. 2008). “Criminal conversion requires proof

       that a person knowingly or intentionally exerted unauthorized control over

       property of another person.” Id. (citing I.C. § 35-43-4-3). “A person engages in

       conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious

       objective to do so.” I.C. § 35-41-2-2(a). “A person engages in conduct

       ‘knowingly’ if, when he engages in the conduct, he is aware of a high

       probability that he is doing so.” I.C. § 35-41-2-2(b). A person’s control over

       Court of Appeals of Indiana | Opinion 49A02-1601-PL-164 | January 23, 2017   Page 13 of 18
       property of another person is “unauthorized” if it is exerted without consent or

       in a manner or to an extent other than that to which the other person has

       consented. I.C. § 35–43–4–1(b)(1), (2).


[21]   “Unlike in a criminal trial, a claimant in a civil action need only prove by a

       preponderance of the evidence that the defendant committed the criminal act; a

       criminal conviction of conversion is not a condition precedent to recovery in

       the civil action.” French-Tex Cleaners, 893 N.E.2d at 1166. Nevertheless, the

       claimant must prove all the elements of the alleged criminal act, including the

       required criminal intent for conversion. Id. at 1166-67. “It is this mens rea

       requirement that differentiates criminal conversion from a more innocent

       breach of contract or failure to pay a debt, which situations the criminal

       conversion statute was not intended to cover.” Id. at 1167. “[A] party may not

       restyle a breach-of-contract claim as a tort claim simply to obtain additional

       damages.” JPMCC 2006-CIBC14 Eads Parkway, LLC v. DBL Axel, LLC, 977

       N.E.2d 354, 364 (Ind. Ct. App. 2012), trans. denied.


[22]   Huxley testified at trial regarding his retention of the tools that Godby had paid

       for. Huxley explained that, when he began working at Godby, he brought his

       own personal tools to the job. Huxley stored the tools in his company-provided

       truck, which he parked in his driveway. Huxley did not believe the locks on the

       truck were adequate and told Godby so. Sometime in December 2012,

       Huxley’s truck was broken into, and his tools were stolen. Huxley spent over

       $5,000 out of his own pocket replacing those tools; he also reiterated his request

       to Godby that the locks on the trucks be improved, but they were not. Within a

       Court of Appeals of Indiana | Opinion 49A02-1601-PL-164 | January 23, 2017   Page 14 of 18
       matter of two weeks after the first theft, Huxley’s truck again was broken into,

       and his new tools were stolen. This time, Huxley requested that Godby

       purchase a number of replacement tools. Godby did so; Huxley thought,

       erroneously as it turned out, that he would not be required to repay Godby for

       those tools. However, Godby did seek repayment for the tools after Huxley

       terminated his employment. With respect to Huxley’s uniforms, he did return

       them to Godby after litigation began at a court date. Godby still sought

       damages because the uniform company would not take them back because of

       the time period that had passed, so Godby had to pay for them. There is

       virtually no evidence in the record regarding the phone charger Huxley

       retained.


[23]   It is evident to us in considering Huxley’s testimony, as we must do given our

       standard of review, that there was a bona fide contract-related dispute regarding

       who was responsible for the cost of the tools purchased after the second theft

       from Huxley’s company truck in December 2012. The evidence hardly

       required the trial court to find that Huxley had the necessary criminal mens rea

       to commit criminal conversion by intentionally or knowingly retaining the tools

       without Godby’s consent. Similarly, we cannot say that Huxley’s delayed

       returning of Godby’s uniforms is sufficient evidence that he converted them,

       and there is a complete lack of evidence regarding his retention of the phone

       charger. It does appear that Godby has improperly attempted to turn contract-

       related disputes with a former employee into a criminal matter, which is not the




       Court of Appeals of Indiana | Opinion 49A02-1601-PL-164 | January 23, 2017   Page 15 of 18
       purpose of the conversion statutes. The trial court properly rejected Godby’s

       request for treble damages and attorney fees on its counterclaim.


                                         IV. Appellate Attorney Fees

[24]   Finally, we address Huxley’s request for appellate attorney fees. His request

       partially falls under Indiana Code Section 22-2-5-2, which provides for an

       award of reasonable attorney fees to an employee in any successful WPA

       action. This provision includes appellate attorney fees as well. Steele, 766

       N.E.2d at 705-06. Although we have partially reversed the WPA claim and

       Huxley will receive a slightly-lesser amount on remand, it is consistent with the

       purposes of the WPA to permit him to recover appellate attorney fees with

       respect to this claim on appeal. See id. at 706 (Boehm, J., concurring) (noting

       that “vast majority of workers . . . are dependent on their paychecks for their

       day-to-day expenses” and “[t]hese employees need the money currently, not at

       the end of protracted litigation, and often do not have the economic staying

       power to engage in a court battle over relatively small amounts. A statute

       providing one party with treble damages and attorney’s fees is a very substantial

       deterrent to an employer’s playing fast and loose with wage obligations.”).

       Additionally, in its reply brief, Godby makes no mention of Huxley’s appellate

       attorney fees request under the WPA attorney fees statute.


[25]   Huxley also seeks appellate attorney fees under Indiana Appellate Rule 66(E),

       which would apply to that part of the appeal related to Godby’s counterclaim.

       Appellate Rule 66(E) permits us to award appellate attorney fees to a successful

       litigant “if an appeal, petition, or motion, or response, is frivolous or in bad
       Court of Appeals of Indiana | Opinion 49A02-1601-PL-164 | January 23, 2017   Page 16 of 18
       faith.” In order to award attorney fees under this rule, an appeal must be

       “‘permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness,

       or purpose of delay.’” Ballaban v. Bloomington Jewish Cmty., Inc., 982 N.E.2d

       329, 339-40 (Ind. Ct. App. 2013) (quoting Thacker v. Wentzel, 797 N.E.2d 342,

       346 (Ind. Ct. App. 2003)). “A strong showing is required to justify an award of

       appellate damages and the sanction is not imposed to punish mere lack of merit

       but something more egregious.” Id. at 340.


[26]   Although Godby was unsuccessful on its counterclaim arguments on appeal,

       we cannot say those arguments were so entirely lacking in merit or cogency that

       they indicate bad faith or frivolity. Huxley is not entitled to appellate attorney

       fees with respect to the counterclaim issues. We remand for the trial court to

       make a fair calculation of the appellate attorney fees to which Huxley is entitled

       with respect solely to the WPA claim.


                                                   Conclusion
[27]   We reverse the trial court’s award of $972.71 in base wages to Huxley, as well

       as the doubling of that amount as liquidated damages. We remand for

       calculation of the wages to which Huxley is entitled after consideration of

       mandatory tax withholding only; Huxley is entitled to that net amount plus

       double the net amount. We affirm the trial court’s damages award on Godby’s

       counterclaim and its refusal to award treble damages or attorney fees to Godby.

       We also remand for a calculation of the reasonable appellate attorney fees to

       which Huxley is entitled with respect to defending the WPA judgment only.


       Court of Appeals of Indiana | Opinion 49A02-1601-PL-164 | January 23, 2017   Page 17 of 18
[28]   Affirmed in part, reversed in part, and remanded.


[29]   Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1601-PL-164 | January 23, 2017   Page 18 of 18
