Spoon v. ATF Logistics, LLC
| Decision Date | 13 November 2015 |
| Docket Number | No. 30A04–1412–PL–571.,30A04–1412–PL–571. |
| Citation | 42 N.E.3d 174 (Table) |
| Parties | Lester SPOON, Appellant–Defendant, v. ATF LOGISTICS, LLC, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Ronald E. Weldy, Weldy Law, Indianapolis, IN, Attorney for Appellant.
David L. Byers, Andrew J. Noone, Holwager, Byers, & Caughey, Beech Grove, IN, Attorneys for Appellee.
[1] Lester Spoon was a truck driver who drove for ATF Logistics, sometimes as an employee and sometimes as an independent contractor. He alleges on appeal the trial court should have entered judgment in his favor as to certain deductions from his pay, ATF's last payment to Spoon was late, and the trial court awarded too little in attorney fees.1 We affirm.
[2] Lester Spoon was a truck driver for ATF Logistics, a trucking company in Hancock County. He began working for ATF in July 2007 and signed a “Company Driver Contract” at that time. He was an employee until February 5, 2008, on which date he changed his status to independent contractor. On April 25, 2008, he signed a new Company Driver Contract and became an employee again. He ended his employment with ATF on July 9, 2008. His final paycheck was written on July 22, and it was mailed to him.
[3] Spoon sued ATF in September 2009, claiming improper deductions were made from his pay, he was not paid at the agreed-on mileage rate, and his final pay was not timely. Spoon's independent contractor agreement listed various charges for which the contractor was responsible. His Company Driver Contract, by contrast, did not require the employee-driver to pay such charges. The trial court accordingly found a number of ATF's deductions from Spoon's pay were appropriate because Spoon was an independent contractor when the charges were incurred and the deductions made. It found other charges were inappropriate because Spoon was an employee at the time.
[4] The trial court entered findings of fact and conclusions of law. Our standard of review of special findings pursuant to Ind. Trial Rule 52(A) mandates we first determine whether the evidence supports the findings and then whether the findings support the judgment. Borth v. Borth, 806 N.E.2d 866, 869 (Ind.Ct.App.2004). Because the trial court is charged with determining the credibility of the witnesses, the findings or judgment will not be set aside unless clearly erroneous. Id. Clear error exists where the record does not offer facts or inferences to support the trial court's findings or conclusions of law. Id.
[5] We give due regard to the trial court's ability to assess the credibility of witnesses. Perrine v. Marion Cnty. Office of Child Servs., 866 N.E.2d 269, 273 (Ind.Ct.App.2007). We defer substantially to findings of fact, but do not do so to conclusions of law. Id. at 273–74. We do not reweigh the evidence; rather we consider the evidence most favorable to the judgment with all reasonable inferences drawn in favor of the judgment. Id. at 274.
[6] Spoon argues the trial court erred in finding certain deductions were legally taken from his paycheck because it did not correctly determine the dates he was an employee rather than an independent contractor.2 Spoon's argument is an invitation for us to reweigh the evidence, and we will not do so. See, e.g., id. at 273 ().
[7] The trial court found Spoon began his employment at ATF on July 2, 2007, became an independent contractor on February 5, 2008, terminated the independent contractor agreement and entered into a new “Company Driver Contract” on April 25, 2008,3 and was again an employee until he resigned effective July 9, 2008. The trial court's findings were supported by evidence in the form of dated documents Spoon signed. We acknowledge testimony to which Spoon directs us indicating different employment dates, but we will not reweigh the evidence. We remind Spoon that the trier of the fact has the right to believe that evidence it finds creditable and by the same token the right to disbelieve evidence it does not find worthy. See Hen drickson v. Contracting & Material Co., 138 Ind.App. 193, 195, 212 N.E.2d 903, 904 (1966).
[8] That is so even if an item of evidence is not expressly or directly denied or refuted:
[E]ven though a particular item of evidence is not expressly or directly contradicted this does not prevent the trier from taking into consideration all of the other evidence including circumstances and surroundings that might in any way affect the weight or credibility of such evidence and the trier may disregard oral evidence if considered unreasonable or inconsistent with facts and circumstances shown by the other evidence in the case.
Wright v. Peabody Coal Co., 225 Ind. 679, 687, 77 N.E.2d 116, 119 (1948).
[9] Spoon challenges deductions from his pay for the pay periods February 5–11, 2008, April 15–21, 2008, April 22–28, 2008, and July 8–14, 2008. The evidence before the trial court supported its determination Spoon was an independent contractor during the first three of those periods and his independent contractor agreement permitted the deductions.4 We may not reweigh that evidence and we accordingly find no error.
[10] As for the deduction attributed to July 2008, when Spoon was again an employee, the Company Driver Contract Spoon signed on April 25, 2008 provided he would be charged a “retrieval fee” for equipment belonging to ATF that it had to retrieve. The trial court heard testimony that Spoon “basically abandoned [ATF's] truck at a truck stop with the keys in it,” and ATF had to recover the truck. (Tr. at 68.)
[11] Spoon asserts, without explanation or citation to authority, “factually there was never a question that ... the deductions were in violation of the Wage Deduction Statute.” (Br. of Appellant at 15.) Spoon has waived that allegation of error. When a party does not provide cogent argument and citation to legal authority, its argument is waived for appellate review. See, e.g., Vandenburgh v. Vandenburgh, 916 N.E.2d 723, 730 (Ind.Ct.App.2009) ). We accordingly cannot address Spoon's suggestion contractual retrieval charges to which Spoon agreed are necessarily “deductions ... in violation of the Wage Deduction Statute.” (Br. of Appellant at 15.)
[12] Ind.Code § 22–2–5–1(b) provides payment shall be made for all wages earned to a date not more than ten business days prior to the date of payment. If an employee voluntarily leaves employment, as did Spoon, the employer is not 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. In Spoon's case, that was July 22, 2008.
[13] ATF's check to Spoon was dated July 22, 2008. There was no provision for direct deposit of the check to Spoon's account. There was evidence before the trial court that Spoon could have picked up the check, but he did not, so it was mailed to him. He cashed it on August 11, 2008.
[14] The record reflects Spoon's last paycheck was written and available to him within the statutory time limit. He offers no argument supported by legal authority to the effect there is no “payment” of a check that is written in a timely manner and timely available to the former employee unless the employee receives it within that time period, in this case the same day the check was written. He has therefore waived that allegation of error. See Vandenburgh, 916 N.E.2d at 730 (). We express no opinion regarding when “payment” takes place when a final paycheck is timely issued but not received by a former employee until after the due date. But in light of the record before us, we must decline Spoon's apparent invitation to hold there is no “payment” unless a check is cashed, or at least received, on the same day it is issued.
[15] Ind.Code § 22–2–5–2 provides when an employer does not pay wages to an employee as provided in Ind.Code § 22–2–5–1 and the employee brings suit and recovers the amount due, “the court shall order as costs in the case a reasonable fee for the plaintiff's attorney and court costs.” The trial court found Spoon had shown $664.90 had been wrongly deducted from his pay, so he was entitled to liquidated damages of $1,329.80, or double the amount of the deductions. See id (). It then found $500 was a reasonable attorney fee.5 Spoon's counsel had asked for over $13,000.
[16] We review the trial court's decision to award attorney fees and the amount thereof under an abuse of discretion standard. In re Moeder, 27 N.E.3d 1089, 1103 (Ind.Ct.App.2015), reh'g denied, trans. denied sub nom. In Matter of Irrevocable Trust of Mary Moeder, 37 N.E.3d 960 (Ind.2015). What constitutes reasonable attorney fees is a matter largely within the trial court's discretion. Id. As the judge is considered an expert, we continue to adhere to the view that the judge may judicially know what a reasonable fee is. Id.
[17] A trial court has abused its discretion if its decision clearly contravenes the logic and effect of the facts and circumstances or if the court has misinterpreted the law. R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 457 (I...
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