                                                                                     FILED
                                                                                Nov 12 2019, 8:33 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




         ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
         Robert Owen Vegeler                                       Ronald E. Weldy
         Fort Wayne, Indiana                                       Indianapolis, Indiana


                                                     IN THE
             COURT OF APPEALS OF INDIANA

         DeGood Dimensional Concepts,                              November 12, 2019

         Inc.,                                                     Court of Appeals Case No.
                                                                   19A-PL-141
         Appellant-Defendant, Cross-Appellee,
                                                                   Appeal from the Kosciusko Circuit
                 v.                                                Court
                                                                   The Honorable Michael W. Reed,
         John D. Wilder,                                           Judge
                                                                   Trial Court Cause No.
         Appellee-Plaintiff, Cross-Appellant.
                                                                   43C01-1103-PL-27



         Altice, Judge.


                                                   Case Summary


[1]   DeGood Dimensional Concepts, Inc. (DeGood), appeals the trial court’s judgment

      in favor of its former employee, John D. Wilder, for unpaid sales commissions and

      attorney’s fees. Wilder cross-appeals, claiming that the trial court erred in not

      awarding him amounts for unpaid wages, additional commissions, liquidated

      damages, attorney’s fees, and pre-judgment interest and costs.

         Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019                            Page 1 of 23
[2]   We affirm in part, reverse in part, and remand with instructions.


                                           Facts & Procedural History


[3]   DeGood is a corporation in North Webster that manufactures and sells small

      orthopedic medical devices. The corporation is operated by Scott DeGood and his

      wife, Mary. Wilder had worked in sales and marketing with various businesses

      over the years, including other medical device companies.


[4]   At some point, Wilder approached the DeGoods about working for them in the

      sales division. After some negotiation, Wilder drafted an employment agreement

      (First Agreement) in December 2008. This contract provided that Wilder would

      earn an annual base salary of $50,000 to be paid on a bi-weekly basis with ten days

      of paid vacation the first year, fifteen days the second year, and twenty days every

      year thereafter.


[5]   Wilder would also be paid a two percent commission on sales of pre-existing

      product sales from $1 million to $2 million, along with a two percent commission

      on sales of new products up to $2 million. This payment schedule was attached to

      the First Agreement. Wilder was to work exclusively for DeGood from his

      residence at least forty hours per week, plus travel as required. The First

      Agreement further provided that Wilder would report to the plant in North

      Webster for a minimum of six hours every two to three weeks. Wilder was

      obligated to copy DeGood on emails, abide by the rules set forth in the employee

      handbook that Wilder received and acknowledged, report all sales activities and


         Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019       Page 2 of 23
      provide those records to DeGood, and maintain a call log. In the event of

      termination or resignation, a one-month notice was required and full compensation

      was to be paid during that period. Both parties signed the First Agreement, and

      Wilder was to commence employment on December 15, 2008. However, the

      parties subsequently agreed to a January 1, 2009 start date. The date was again

      mutually changed to January 15.


[6]   DeGood sustained a substantial decline in product sales during the last half of

      2009. As a result, all of its employees’ hours were reduced for a six-month period.

      Additionally, both parties agreed that Wilder’s salary would be reduced by 25%

      from July 20, 2009, through March 12, 2010.


[7]   On August 1, 2010, the parties entered into a second employment agreement

      (Second Agreement) that provided for a $5000 increase in Wilder’s salary. This

      contract was designed, among other things, to clarify some of the terms and rules

      that Wilder had not been following under the First Agreement. The Second

      Agreement also provided that termination/resignation notice was to be three

      months, and “all forms of compensation [were to be included] during this period.”

      Appellant’s Appendix Vol. II at 111-12.


[8]   The DeGoods conducted periodic performance reviews throughout Wilder’s

      employment, including one on September 8, 2010, that culminated in an overall

      negative review of Wilder’s work performance. All reviews had detailed Wilder’s

      numerous violations of known and stated rules that were set forth in the employee

      handbook, including the prohibition against working for other companies, taking


         Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019     Page 3 of 23
      extended breaks, and working many less hours than what had been agreed upon.

      More specifically, Wilder had been incommunicative with the DeGoods for several

      months after commencing employment, and he did not meet with any customers

      from January 15, 2009, until April 2009. Wilder only made two trips to the plant

      during the first six months of 2009, failed to send sales reports, or copy DeGood on

      emails. Mary told Wilder at the September 8 meeting that he would be terminated

      in three months if his performance did not improve. The DeGoods and Wilder

      acknowledged and signed each review.


[9]   On September 13, 2010, Wilder emailed Mary, stating, “I will assume that on

      9/8/2010, I received my 90 day notice for termination. If this is the case, how

      would you like to proceed?” Exhibits Vol. IV at 1. Mary’s email response that

      same day provided:


                 It was just as we presented it to you, as a Formal Warning (not
                 termination) from your employer that your job is in jeopardy,
                 why it is in jeopardy, and what our expectations as your
                 employer are in moving forward to resolve any and all the
                 problems discussed. We DID NOT give you a termination
                 notice, and also stated that was NOT our intentions [sic] during
                 the meeting as well. We did state that we wanted to work this
                 out with you and hopefully have you working with the company
                 for years to come.


         Id. (Emphases in original). The response went on to state that


                 [b]ecause you have ignored numerous previous verbal warnings
                 and e-mails, a written warning was presented to you that you
                 now are on probation for 3 months, and will show us in those 3
                 months that you are willing to perform your job following the

         Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019     Page 4 of 23
                  guidelines in the report that was given to you, and also discussed
                  thoroughly during the meeting.


          Id. at 6. The following day, Wilder emailed Mary again, stating, “No

          Termination notice regarding our agreement dated 2010. Your intention is not

          to terminate our agreement. Purpose for your summary & our discussions

          (“Employee Performance Review”) was to clarify areas of improvement & to

          make sure employer expectations were clear.” Id. at 6.


[10] On   December 6, 2010, Wilder emailed Mary explaining that he would be out for a

   half day because his back was “giving [him] trouble.” Id. at 135. Later that

   afternoon, Mary responded as follows: “The amount of work that you have

   missed in the last couple of weeks on top of all the previous problems that have

   been addressed regarding your absenteeism is completely out of control and I must

   present a final warning that it [sic] not going to be continued to be [sic] tolerated!”

   Id. (Emphasis added).


[11] Another     Performance Notification (Notification), bearing a handwritten notation

   that Wilder’s employment with DeGood was being terminated, was issued to

   Wilder on January 5, 2011. The Notification detailed numerous policy violations

   that Wilder had committed throughout the course of his employment. Three prior

   formal written warnings were documented in the Notification, which stated that

   “[t]he employee has ‘Willfully Neglected’ the position of the Sales VP and terms

   stated in his employment contract, along with the disregard of previously stated

   warnings and the below performance notifications that the employee already has

   received to date.” Appellant’s Appendix Vol. II at 133. The Notification stated that
          Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019     Page 5 of 23
   Wilder had continued to bring in company reps not associated with DeGood after

   he was told to cease such behavior. DeGood also asserted that Wilder had

   misused the company telephone and used the business’s ATM card for

   unauthorized personal situations.


[12] DeGood    observed in the Notification that “John Wilder was formally put on a 3

   month PROBATION and was given notification in writing regarding the probation

   with all issues outlined on 9/8/10 which the employee acknowledged and signed

   and was given copies.” Id. DeGood also made it clear in the Notification that


                [Wilder] was notified with a detailed summary, that he was in
                bre[ach] of his employment contract and that the employee owed
                the company monies from being overpaid for hours that the
                employee had not worked and that the amount owed to company
                would be zeroed out and any new compensation for commissions
                would start over at the end of the 3 month probation with the
                understanding the employee needed to make a serious dedicated effort in
                resolving all the problems that were noted.


                The needed effort needed by the employee was not achieved
                during this 3 month Probation. . . .


       Id. (Emphasis added).


[13] Wilder   filed a complaint against DeGood on March 14, 2011, for unpaid salary,

   commissions, vacation and sick time, and bonuses. DeGood counterclaimed for

   damages and injunctive relief. DeGood claimed, inter alia, that it had acted in

   good faith in not paying Wilder a portion of the commissions, and that it could not

   be held liable for unpaid wages, attorney’s fees, court costs, or liquidated damages.

       Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019          Page 6 of 23
   DeGood also alleged that Wilder had committed civil theft because he had taken

   excessive unauthorized time off and had not worked the minimum forty-hour week

   required under the First and Second Agreements.


[14] Following    a bench trial on August 22, 2018, the trial court entered its judgment,

   finding that Wilder failed to prove that DeGood had committed material breaches

   of either Agreement, inasmuch as both parties had agreed to modify the

   Agreements in light of their conduct during the course of Wilder’s employment. It

   determined that Wilder failed to show that he had not been paid his full salary

   during the employment period. The trial court also found that Wilder had made a

   valid claim for unpaid commissions under the First Agreement in accordance with

   the Wage Claim Statute 1 for $9287.48. However, the trial court denied Wilder’s

   request for liquidated damages under the Wage Claim Statute in light of the

   parties’ modifications of both Agreements, their bona fide disputes throughout the

   course of the employment period, and the lack of evidence that DeGood had acted

   in bad faith in withholding the commissions. The trial court also ordered DeGood

   to pay the costs of the action and Wilder’s attorney’s fees in the amount of $15,250

   pursuant to the Wage Claim Statute. With regard to DeGood’s counterclaims, the

   trial court determined that DeGood failed to prove that it had overpaid Wilder’s

   salary and that it was not entitled to damages against Wilder on its claim that

   Wilder had stolen any wages. In the end, the trial court entered judgment for




      1
          Ind. Code § 22-2-5-1.


      Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019         Page 7 of 23
   Wilder in the amount of $24,537.48, together with statutory interest. 2 However,

   the final judgment stated that court costs were assessed against Wilder.


[15] DeGood    appeals, claiming that the judgment must be set aside because it: 1) never

   agreed to modify the Agreements and that Wilder was the first to breach both

   Agreements; 2) cannot be liable for damages under the Wage Claim Statute

   because Wilder did not follow the proper procedures in pursuing his claims against

   it; 3) has established that commissions are not wages within the meaning of I.C. §

   22-2-5-2; 4) is not liable for liquidated damages because it did not act in bad faith in

   withholding those commissions or alleged unpaid salary amounts; 5) established

   the evidence was insufficient to support the commission award; and 6) was entitled

   to attorney’s fees and damages against Wilder for civil theft because Wilder’s

   conduct throughout the course of his employment constituted “theft of labor.”

   Appellant’s Brief at 33.


[16] Wilder   cross-appeals, claiming that he is entitled to: 1) amounts for underpaid and

   unpaid wages; 2) liquidated damages under the Wage Claim Statute; and 3) pre-

   judgment interest and costs.


                                            Discussion and Decision




       2
         The trial court amended its final order and judgment on December 19, 2018 (Amended Final Order),
       stating that a letter from the Office of the Attorney General had authorized Wilder’s counsel to pursue wage
       claims against DeGood under I.C. § 22-2-9-2. The amended order also noted that the Wage Claim Statute
       provides for the payment of reasonable attorney’s fees and costs and recovery of twice the amount of the
       unpaid wages as liquidated damages if the employer failed to act in good faith in the nonpayment of wages.

       Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019                             Page 8 of 23
                                                 I. Standard of Review


[17] On   appeal, the ﬁndings and conclusions made by the trial court are to be liberally

   construed to support the judgment. In re Paternity of J.A.C., 734 N.E. 2d 1057, 1059

   (Ind. Ct. App. 2000). They will not be overturned unless they are clearly

   erroneous.         Lucero v. Lutheran Univ. Ass’n, 621 N.E.2d 660, 664 (Ind. Ct. App.

   1993). Findings are clearly erroneous only when the record contains no facts to

   support them either directly or by inference. Jones v. Von Hollow Ass’n, Inc., 103

   N.E.3d 667, 671 (Ind. Ct. App. 2018). A judgment is clearly erroneous if it applies

   the wrong legal standard to properly found facts. Id. In determining whether the

   ﬁndings or judgment are clearly erroneous, we do not reweigh the evidence and

   consider only the evidence favorable to the judgment and all reasonable inferences

   ﬂowing therefrom. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999). We evaluate

   questions of law de novo and owe no deference to a trial court’s determination of

   such questions. Jones, 103 N.E.3d at 671.


[18] As   for Wilder’s cross-appeal, we note that he is appealing from a negative

   judgment. A judgment entered against a party who bore the burden of proof at

   trial is a negative judgment. Stoffel v. JPMorgan Chase Bank, 3 N.E.3d 548, 552

   (Ind. Ct. App. 2014). On appeal, we will not reverse a negative judgment unless it

   is contrary to law. Id. To determine whether a judgment is contrary to law, we

   consider the evidence in the light most favorable to the cross-appellee, together

   with all the reasonable inferences to be drawn therefrom. Id. at 553. A party

   appealing from a negative judgment must show that the evidence points unerringly



          Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019      Page 9 of 23
  to a conclusion different than that reached by the trial court. Smith v. Dermatology

  Assoc., 977 N.E.2d 1, 4 (Ind. Ct. App. 2012).


                                          II. DeGood’s Claims


                      A. Modification and Enforcement of the Agreements


[19] DeGood   argues that the trial court erred in finding that it had modified either

  Agreement. DeGood maintains that there was a lack of evidence of any

  modification and that it never acquiesced in, or waived, any of the Agreements’

  material terms. DeGood asserts that, “at best, it tolerated Wilder’s non-

  compliance” with the Agreements. Reply Brief of Appellant/Cross-Appellee at 15.

  Therefore, DeGood contends that because there was no modification, and Wilder

  was the first to breach the Agreements by failing to follow their express terms,

  Wilder was precluded from enforcing the Agreements.


[20] DeGood   correctly posits that the first party to breach a contract may not enforce its

  terms. Steve Silveus Ins., Inc. v. Goshert, 873 N.E.2d 165, 182 (Ind. Ct. App. 2007).

  However, the evidence at trial showed that both parties consented to a

  modification of the employment contracts, inasmuch as they agreed to Wilder’s

  start date that differed from that stated in the First Agreement. Indeed, while the

  First Agreement provided that Wilder was to commence employment on

  December 15, 2008, both DeGood and Wilder subsequently agreed to a different

  start date of January 1, 2009. Wilder then sought to arrive at the plant on January

  2, but that date did not materialize. Thereafter, Wilder suffered a back injury in an

  automobile accident on January 15 and sought ongoing medical treatment that

     Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019        Page 10 of 23
    resulted in an agreed-upon modified work schedule. The evidence further

    established that the parties agreed to a reduction in Wilder’s salary from the latter

    part of July 2009 through March 12, 2010. In light of this evidence, we cannot say

    that the trial court’s finding of an agreed modification was clearly erroneous.

    Thus, neither party was precluded from enforcing the terms of the Agreements

    against the other, and DeGood’s contention that Wilder was foreclosed from

    initiating a cause of action against it fails.


                                               B. Commissions Owed


                1. Wilder’s Alleged Failure to Follow Proper Procedure Under the Wage Claim

                                                             Statute


[21] It   appears that DeGood is claiming that the judgment must be reversed because

    Wilder failed to follow the procedures outlined in the Wage Claim Statute. As a

    result, DeGood maintains that Wilder was barred from recovering costs, attorney’s

    fees, or liquidated damages for which the Wage Claim Statute provides in certain

    circumstances.


[22] In   resolving this issue, we initially observe that the Wage Claim Statute provides:


                   (a) Every . . . corporation . . . doing business in Indiana, shall pay
                   each employee at least semimonthly or biweekly, if requested, the
                   amount due the employee. The payment shall be made in lawful
                   money of the United States. . . . Any contract in violation of this
                   subsection is void.


                   (b) Payment shall be made for all wages earned to a date not
                   more than ten (10) business days prior to the date of payment. . .

           Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019       Page 11 of 23
      I.C. § 22-2-5-1. A companion statute, I.C. § 22-2-5-2, defines the damages that

      are recoverable when proceeding under the Wage Claim Statute:


                Every such person, firm, corporation, limited liability company,
                or association who shall fail to make payment of wages to any
                such employee as provided in section 1 of this chapter shall be
                liable to the employee for the amount of unpaid wages, and the
                amount may be recovered in any court having jurisdiction of a
                suit to recover the amount due to the employee. The court shall
                order as costs in the case a reasonable fee for the plaintiff’s
                attorney and court costs. In addition, if the court in any such suit
                determines that the . . . corporation that failed to pay the employee as
                provided in section 1 of this chapter was not acting in good faith, the
                court shall order, as liquidated damages for the failure to pay wages, that
                the employee be paid an amount equal to two (2) times the amount of
                wages due the employee.


      (Emphasis added). Furthermore, I.C. § 22-2-9-4(b) sets forth the procedures

      that a claimant must follow to recover the damages under the Wage Claim

      Statute:


                The commissioner of labor may refer claims for wages under this
                chapter to the attorney general, and the attorney general may
                initiate civil actions on behalf of the claimant or may refer the claim
                to any attorney admitted to the practice of law in Indiana. The
                provisions of IC 22-2-5-2 apply to civil actions initiated under this
                subsection by the attorney general or his designee.


      (Emphasis supplied).


[23] Contrary   to DeGood’s assertions, the trial court specifically determined in its

   Amended Final Order and Judgment (Amended Order) that Wilder had complied


      Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019               Page 12 of 23
   with the procedures set forth in I.C. 22-2-9-4(b) in pursuing his claims. The trial

   court also pointed out that this declaration in the Amended Order had no effect

   upon the substance of the original judgment. Thus, DeGood’s claim that Wilder

   failed to follow the proper procedures under the Wage Claim Statute fails.


                                        2. “Commissions” vs. “Wages”


[24] DeGood       argues for the first time on appeal that Wilder is barred from recovering

   any unpaid commissions because “commissions” are not “wages” within the

   meaning of the Wage Claim Statute. Time and again, this court has held that a

   party may not raise an issue on appeal if it was not raised at the trial court level.

   KOA Properties, LLC v. Matheison, 984 N.E.2d 1255, 1258 (Ind. Ct. App. 2013).

   The record reflects that DeGood not only failed to argue at the trial court level that

   commissions do not qualify as wages under the Wage Claim Statute, but it also

   conceded as much. Specifically, DeGood commented in its trial brief that

   ‘“commissions’ are ‘wages’ under I.C. § 22-2-5, but only if pursued through I.C. §

   22-2-9.” Appellant’s App. at 36, 38. Thus, DeGood is foreclosed from raising this

   issue for our review.


                           3. Sufficiency of the Evidence—Unpaid Commissions


[25] As   for DeGood’s alternative contention that the evidence did not support the

   commission award, we choose to follow the same standard that is employed when

   reviewing a damage award. That is, when reviewing a claim that an award of

   damages is inadequate, we will neither reweigh evidence, nor judge the credibility

   of the witnesses. Palmer v. Comprehensive Neurologic Servs., P.C., 864 N.E.2d 1093,

          Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019     Page 13 of 23
   1103 (Ind. Ct. App. 2007), trans. denied. We consider only the evidence favorable

   to the award. Id. Additionally, we must not reverse a damage award so long as

   the damages fall within the scope of the evidence. Manzo v. Estep, 689 N.E.2d 474,

   475 (Ind. Ct. App. 1997). The finder of fact is in the best position to assess

   damages. Palmer, 864 N.E.2d at 1103.


[26] Here,   it was established at trial that DeGood had both pre-existing product sales

   and new product sales during 2009 and 2010. The total combined sales during

   these two years amounted to $2,126,724.67. As discussed above, DeGood agreed

   to pay Wilder two percent on pre-existing product sales from $1 million to $2

   million, and two percent on new product sales up to $2 million. However, a

   dispute existed as to what Wilder had actually earned in sales commissions, as well

   as what DeGood had actually paid him. Both parties agree that it is not readily

   apparent as to how the trial court calculated the amount due and arrived at the

   figure of $9287.48 in commissions that it ordered DeGood to pay. That said,

   Wilder acknowledges—and we agree—that the unpaid commission award was

   within the scope of the evidence presented at trial. Thus, we decline to disturb that

   judgment. See id. (holding that the jury’s award of damages was proper when the

   amount of the judgment fell within the parameters of the evidence presented at

   trial).


                                            4. Alleged Bad Faith


[27] DeGood     also claims that Wilder cannot recover liquidated damages under the

   Wage Claim Statute for the unpaid commissions because it was not established


       Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019      Page 14 of 23
   that DeGood acted in bad faith by failing to pay these amounts. As discussed

   above, I.C. § 22-2-5-2 provides for an award of twice the amount of wages due, as

   liquidated damages, if it is determined that the employer had not acted in good

   faith in failing to pay the amount due the employee.


[28] Here,   there is no showing that DeGood’s withholding of the amounts that were

   due amounted to bad faith in light of the parties’ conduct that existed throughout

   Wilder’s employment period, including the modifications to the Agreements, and

   the good faith disputes that existed as to what was actually owed. Moreover, there

   is no showing that the trial court ordered DeGood to pay any amount over and

   above the commissions that were actually owed, i.e. no liquidated damages, with

   the exception of attorney’s fees that are authorized under I.C. § 22-2-5-2. In short,

   DeGood cannot be heard to complain about an improper award of liquidated

   damages under the Wage Claim Statute when the trial court did not award such

   damages.




                                        C. Liability For Alleged Theft


[29] DeGood     next claims that the trial court erred in not ordering Wilder to pay its

   attorney’s fees and damages for civil theft under Ind. Code § 34-24-3-1, the Crime

   Victims Relief Act, on its counterclaim because the evidence established that

   Wilder did not work the required forty hours per week under either Agreement.


       Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019        Page 15 of 23
    Thus, DeGood maintains that Wilder’s conduct amounted to fraud and “theft of

    labor.”


[30] It   is undisputed that Wilder was a salaried employee. Thus, DeGood was required

    to pay Wilder his salary for each bi-weekly pay period that he worked for DeGood,

    regardless of the number of days and hours that Wilder actually worked in any

    particular week. I.C. § 22-2-5-1; 29 C.F.R. § 541.602 (providing that an employer

    must pay an employee his or her “full salary for any week in which the employee

    performs any work without regard to the number of days or hours worked. . . .”);

    see also Design Indus. v. Cassano, 776 N.E.2d 398, 401 (Ind. Ct. App. 2002)

    (observing that salary is defined as fixed compensation paid regularly for services).

    Thus, the trial court properly determined that Wilder had not committed theft of

    his wages, and DeGood is not entitled to damages under the Crime Victims Relief

    Act.


                                            III. Wilder’s Cross-Appeal


                                             A. Notice of Termination


[31] On    cross-appeal, Wilder argues that the trial court should have found that DeGood

    failed to afford him the three-month notice of termination pursuant to the

    requirements of the Second Agreement. Wilder asserts that he was terminated

    from employment on January 5, 2011, without proper notice and that DeGood is

    obligated to pay him an additional $32,300 in salary and commissions, plus

    liquidated damages.



           Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019   Page 16 of 23
[32] At   trial, Mary testified as follows:


                  Q: [I]s it your position that DeGood did give Mr. Wilder 3
                  months’ notice of its intention to terminate the contract?


                  A: We did. With the condition that he could keep his job. He
                  was told this is our 3-month notice, if you do this. If you do not do this,
                  then you are done at the end of this time period. He had a window of
                  opportunity to keep his job and he did not do it. He did not meet
                  the requirements of what was stipulated in his performance
                  review at his, at his notice, his 3-month notice, he did not
                  perform what he was told so that he could potentially keep his
                  job. He was told if you do not meet these requirements then your
                  job is terminated. At the, at the end of the three months.


   Appellant’s Reply Appendix Vol III, at 3.


[33] The   evidence established that Wilder was given specific and mandatory

   performance requirements at the September 8, 2010 meeting. Unless Wilder

   satisfied those requirements over the next three months, his employment with

   DeGood would be terminated. Wilder failed to meet those requirements, as was

   detailed in the Notification, and he was terminated. Wilder acknowledged that he

   had been provided the required notice when he emailed DeGood stating, “If there

   is no room for discussion then I cannot accept any of the calculations or

   conclusions offered and presented to me and I will assume that on 9/8/2010 I received

   my 90-day notice for termination.” Appellant’s Reply Appendix at 8 (emphasis added).


[34] Notwithstanding        this evidence, Wilder directs us to Mary’s email of September 13,

   2010, where she stated that no termination notice had been provided to him at the


          Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019            Page 17 of 23
   performance review meeting on September 8. Although Mary stated that she

   wanted to work with Wilder and that it was not DeGood’s intention that Wilder

   would be terminated at the end of three months, she made it clear that Wilder was

   required to demonstrate improved performance during that period, or his

   employment would be terminated. Moreover, Wilder signed and acknowledged

   the review that set forth the requirements and conditions that pertained to the

   probationary period. Mary’s emails to Wilder and her testimony at trial, coupled

   with Wilder’s assumption that he had, in fact, received a ninety-day notice for

   termination on September 8, belies his claim on appeal that DeGood did not

   provide him with the required notice under the Second Agreement.


[35] Finally,   even if there was some merit to the assertion that Mary’s testimony at trial

   might have contradicted what she had posited in the emails and performance

   reviews, such evidence goes to her credibility. This court has long held that the

   credibility of witnesses and the weight to be afforded their testimony is a question

   for the trier of fact. City of Gary v. Gause, 317 N.E.2d 887, 891 (1974). And the trial

   court, as the factfinder, could believe all, none, or any portion of Mary’s testimony.

   In other words, even if Mary had provided testimony that could be construed as

   inconsistent with her prior statements or emails, it is apparent that the trial court

   chose to believe Mary’s testimony that the required notice was provided, in spite of

   any alleged prior inconsistent statements that she might have made. Such alleged

   contradictory statements do not render her testimony inconsequential or worthless.

   See id. at 891 (recognizing that although witnesses had made inconsistent




       Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019       Page 18 of 23
       statements to police officers prior to Fire Department Board proceedings, the

       inconsistent statements went only to the weight of their testimony).


[36] In   short, we will not substitute our judgment for that of the trial court that found

       Mary’s trial testimony credible. Therefore, when applying our negative judgment

       standard of appellate review, which we do here because Wilder bore the burden of

       proof on this issue at trial and did not prevail, it was not clearly erroneous for the

       trial court to infer from the evidence presented that Wilder was afforded the

       required ninety-day notice of termination. Thus, Wilder’s claim that he is entitled

       to an additional $32,300 in unpaid wages and commissions fails.


                                         B. Unpaid/Underpaid Salary


[37] In   a somewhat related issue, Wilder asserts on cross-appeal that the trial court

       erred in denying his claim for unpaid salary amounts that were allegedly owed to

       him. Wilder asserts that the evidence established that he was entitled to an

       additional award of $22,236.33 in unpaid wages because DeGood had only paid

       him a portion of his salary.


[38]   Under the First Agreement, Wilder was to be paid an annual salary of $50,000,

       with bi-weekly payments. The effective period commenced on January 1, 2009

       and ended on July 31, 2010. Additionally, the parties agreed that Wilder’s salary

       was to be cut by twenty-five percent from July 20, 2009 to March 12, 2010.


[39] The   gross amount paid to Wilder through July 31, 2010, was $69,165. See

       Appellant’s Reply Appendix at 9-60. What Wilder earned under the First Agreement


          Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019       Page 19 of 23
   for forty-one pay periods was $77,884. Id. However, as discussed above, the

   parties agreed that Wilder’s salary would be reduced by twenty-five percent for

   twenty-five pay periods. After subtracting this percentage—or $9615—Wilder

   should have been paid $68,269. See id. Wilder, therefore, was paid an overage of

   $896, which was likely because DeGood reimbursed him for out-of-pocket

   expenses on occasion.


[40] Under   the Second Agreement, Wilder’s annual base salary was increased to

   $55,000. See Appellant’s Reply Appendix at 9-60. His bi-weekly payment was $2115,

   that commenced on August 1, 2010, and extended through January 6, 2011. The

   gross amount that Wilder received from DeGood during this period was $17,821.

   DeGood acknowledges that it paid Wilder $3329 less than what it owed, based on

   the September 8, 2010 employment performance review, when DeGood informed

   Wilder that it was strictly enforcing the forty-hour per week requirement. Thus,

   DeGood calculated the time that Wilder had not worked and reduced Wilder’s

   salary accordingly.


[41] Notwithstanding    DeGood’s decision, Wilder remained a salaried employee and

   was entitled to his agreed-upon compensation set forth in the Second Agreement.

   See I.C. § 22-2-5-1 and -2. However, we do not agree with Wilder’s contention

   that the trial court was obligated to find that DeGood acted in bad faith when it

   withheld a portion of the amounts that were due under the Second Agreement,

   particularly when considering Wilder’s course of conduct throughout his

   employment, the mutually agreed-upon modifications of the agreements, and the

   bona fide disputes that occurred between the parties. Similarly, we reject Wilder’s

      Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019   Page 20 of 23
    assertion that “DeGood only paid Mr. Wilder when and what [it] felt like paying

    him.” Reply Brief of Cross-Appellant at 14. Hence, we remand this case to the trial

    court with instructions that it enter an additional award of $3329 to Wilder for

    unpaid wages, and to calculate a reasonable amount of attorney’s fees related to

    this particular claim in accordance with the Wage Claim Statute. We, however,

    decline to order DeGood to pay liquidated damages, inasmuch as the evidence

    failed to establish that DeGood’s withholding of these wages amounted to bad

    faith under the Wage Claim Statute.


                      C. Remaining Damages—Pre-Judgment Interest and Costs


[42] Wilder     argues that the trial court erred in not awarding him pre-judgment interest

    on the commissions that DeGood had failed to pay. Wilder also asserts that he is

    entitled to pre-judgment interest on any additional damages that are awarded in

    this appeal.


[43] It   is well-settled that an award of prejudgment interest in a breach of contract

    action is warranted if the amount of the claim rests upon a simple calculation and

    the terms of the agreement make such a claim ascertainable. Song v. Iatarola, 76

    N.E.3d 936, 939 (Ind. Ct. App. 2017). Prejudgment interest is awarded to fully

    compensate an injured party for the lost use of money. Fackler v. Powell, 923

    N.E.2d 973, 977 (Ind. Ct. App. 2010). Put another way, “prejudgment interest is

    recoverable not as interest but as additional damages to accomplish full

    compensation.” Crawford Cty. Cmty. Sch. Corp. v. Enlow, 734 N.E.2d 685, 692 (Ind.

    Ct. App. 2000), trans. denied. The test for determining whether an award of


           Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019    Page 21 of 23
   prejudgment interest is appropriate is whether the damages are complete and may

   be ascertained as of a particular time. Song, 76 N.E.3d at 939 (Ind. Ct. App. 2017).

   The amount is computed from the time the principal amount was demanded or

   due and is allowable at the permissible statutory rate when no contractual

   provision specifies the interest rate. Id. Importantly, for purposes of our review, an

   award of prejudgment interest is generally not considered a matter of discretion. Id.

   The current interest rate is eight percent when there is no contract by the parties

   specifying a different interest rate. Ind. Code § 24-4.6-1-101.


[44] Here,   Wilder’s claims for unpaid commissions and salary were ascertainable

   pursuant to the Agreements and were due and owing on a certain day in the past.

   Thus, Wilder is entitled to pre-judgment interest on these amounts which, on

   remand, is to be calculated at the statutory rate.


[45] Finally,   we note that the trial court assessed costs against Wilder. Ind. Code § 34-

   52-1-1 provides: “In all civil actions, the party recovering judgment shall recover

   costs, except in those cases in which a different provision is made by law.”

   Because Wilder has substantially prevailed in this appeal, he is entitled to recover

   costs of the action. Moreover, the damages provision under the Wage Claim

   Statute provides for the assessment of those costs. I.C. § 22-2-5-2. Thus, we

   instruct the trial court to calculate the costs of this matter on remand and to enter

   an order against DeGood for that amount.


                                                  Conclusion




       Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019       Page 22 of 23
[46] In   light of our disposition of the issues discussed above, we affirm in part, reverse

    in part, and remand this cause to the trial court with instructions that it amend the

    order to include an additional award for Wilder in the amount of $3329 in unpaid

    wages. We further instruct the trial court to calculate the costs of this matter, the

    amount of prejudgment interest that is owed, determine the additional award of

    reasonable attorney’s fees to which Wilder is entitled, and enter an order

    accordingly. In all other respects, the trial court’s judgment is affirmed.




    Brown, J. and Tavitas, J., concur.




          Court of Appeals of Indiana | Opinion 19A-PL-141 | November 12, 2019      Page 23 of 23
