Hamilton County Convention Center, LLC v. Lee R. Johnson (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Aug 18 2016, 8:19 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven P. Taylor Paul L. Jefferson
Law Offices of Steven P. Taylor, P.C. Jefferson & Brewer, LLC
Indianapolis, Indiana Indianapolis, Indiana
Jeffrey S. Nickloy
Amy E. Higdon
Nickloy & Higdon
Noblesville, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Hamilton County August 18, 2016
Convention Center, LLC, Court of Appeals Case No.
Appellant-Cross-Appellee, 29A05-1509-PL-1525
Appeal from the Hamilton
v. Superior Court
The Honorable Wayne A.
Lee R. Johnson, Sturtevant, Judge
Honorable David K. Najjar,
Appellee-Cross-Appellant
Special Judge
Trial Court Cause No.
29D05-1112-PL-12925

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 Baker, Judge.

[1] Hamilton County Convention Center (HCCC), LLC, appeals the judgment of

the trial court, which found that HCCC had illegally failed to pay its employee,

Lee Johnson. Johnson cross-appeals the trial court’s award of attorney fees.

We find that (1) the trial court properly concluded that Johnson was an

employee, (2) Johnson’s remuneration was a wage, and (3) the award of

attorney fees was within the sound discretion of the trial court. Accordingly,

we affirm.

Facts
[2] HCCC operated the “Mill Top” event center in Noblesville. Hassan Shanehsaz

was the sole owner of HCCC, as well as the sole owner of Shane, LLC, the

entity that owned the Mill Top building. Johnson had worked for decades in

the event planning industry, experience that Shanehsaz lacked. In October

2010, Shanehsaz came to an agreement with Johnson: she would solicit

customers who were interested in using the event center space, and HCCC

would pay her a commission. The terms were set out in a letter written by

Johnson to Shanehsaz. Each space in the building had a set commission, and

Johnson could earn additional compensation for upsells like linens, chairs, or

catering.

[3] Johnson worked around seventy hours per week. HCCC provided her with an

office, a desk, a computer, a printer, and a cell phone. Shanehsaz set hours for

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 Johnson to work, and she performed several tasks in addition to her role of

booking new clients: she also cleaned, handled checks, and hired interns.

[4] Johnson would periodically meet with Shanehsaz’s son in order to calculate her

compensation. Roughly two weeks before leaving the job, Johnson was given a

report that showed $10,904.60 owed to her for unpaid commissions. On

November 1, 2011, Johnson resigned.

[5] On November 21, 2011, Johnson sent a letter to Shanehsaz’s attorney,

demanding that he compensate her for her work. She demanded $22,863.79,

which consisted of the amount previously mentioned in the report along with

other commissions that she believed she had earned. The letter mentioned that

if the dispute ended in litigation, Johnson would be proceeding under the Wage

Payment Statute,1 which might entitle her to attorney fees.

[6] On December 11, 2011, Johnson filed a complaint, alleging claims of breach of

contract and violation of the Wage Payment Statute. After a July 31, 2013, and

November 1, 2013, bench trial, the trial court granted judgment in favor of

Johnson on December 17, 2013. The trial court found actual damages of

$15,408.60, plus an additional $30,817.20 of liquidated damages under the

Wage Payment Statute. The trial court set a hearing regarding Johnson’s

attorney fees for February 12, 2014.

1
Ind. Code § 22-2-5-1.

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[7] One day before this hearing was set to take place, HCCC filed a notice of

bankruptcy, and the trial court stayed the attorney fees hearing. When the

bankruptcy closed in 2015, the trial court held a hearing and awarded Johnson

attorney fees of $25,000. HCCC now appeals the judgment that it violated the

Wage Payment Statute, and Johnson cross-appeals the trial court’s calculation

of attorney fees.

Discussion and Decision
[8] Our standard of review is the following:

When a trial court has entered findings of fact and conclusions of
law, we engage in a two-tiered standard of review. We must first
determine whether the evidence supports the findings of fact and
then whether the findings support the judgment. We will not
reverse the trial court’s findings and judgment unless they are
clearly erroneous. The judgment is clearly erroneous when it is
unsupported by the findings of fact and conclusions entered on
the findings. In making these determinations, we will neither
reweigh the evidence nor judge witness credibility, considering
only the evidence favorable to the judgment and all reasonable
inferences therefrom.

Mueller v. Karns, 873 N.E.2d 652, 657 (Ind. Ct. App. 2007).

A. Is Johnson an Employee?
[9] Indiana’s Wage Payment Statute applies to “employees.” I.C. § 22-2-5-1(a).

The trial court found that Johnson was an employee. HCCC argues that

Johnson was not an employee, but rather an independent contractor, and that,

therefore, the Wage Payment Statute does not apply to her.

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[10] The Wage Payment Statute does not define “employee” or “independent

contractor,” but our Supreme Court has laid out a ten-factor test to distinguish

between the two:

1. The extent of control which, by the agreement, the master may exercise
over the details of the work;
2. Whether or not the one employed is engaged in a distinct occupation or
business;
3. The kind of occupation, with reference to whether, in the locality, the
work is usually done under the direction of the employer or by a
specialist without supervision;
4. The skill required in the particular occupation;
5. Whether the employer or the workman supplies the instrumentalities,
tools, and the place of work for the person doing the work;
6. The length of time for which the person is employed;
7. The method of payment, whether by the time or by the job;
8. Whether or not the work is a part of the regular business of the employer;
9. Whether or not the parties believe they are creating the relation of master
and servant; and
10. Whether the principal is or is not in business.

Moberly v. Day, 757 N.E.2d 1007, 1010 (Ind. 2001). We are to consider all

factors, and no single factor is dispositive. Id.

1. Extent of Control
[11] HCCC tasked Johnson with many obligations in addition to her booking duties.

When a space flooded in the middle of the night, Shanehsaz called Johnson and

had her clean it up. She also collected tenants’ checks and helped tenants

access the buildings when they forgot their key. Johnson typically worked

seventy hours per week for HCCC, and she did not work anywhere else. We

find that this factor supports the finding of the trial court.
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 2. Distinct Business
[12] Johnson was not engaged in a distinct occupation or business. She was not like

a landscaper, who might work on one property but then work on another. Her

efforts were aimed entirely at securing clients for HCCC, and she worked at

that task full time. We find that this factor supports the finding of the trial

court.

3. Kind of Occupation
[13] The record does not indicate whether this type of work is typically done under

the direction of an employer or by a specialist without supervision. Therefore,

this factor neither supports nor contradicts the finding of the trial court.

4. Skill Required
[14] Johnson’s job does not seem to require any specialized training or skill. In fact,

when Johnson left her job at HCCC, it replaced her with a former intern who

had little experience in the field. We find that this factor supports the finding of

the trial court.

5. Who Supplied Instrumentalities
[15] Johnson worked out of an HCCC office, using an HCCC phone, computer,

printer, and desk. HCCC concedes that this factor supports the finding of the

trial court.

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 6. The Length of Time
[16] Johnson worked for HCCC for an entire year, and worked nowhere else.

HCCC concedes that this factor supports the finding of the trial court.

7. Method of Payment
[17] Johnson was paid by commission and was not paid a salary. This factor tends

to contradict the finding of the trial court.

8. Part of HCCC’s Regular Business
[18] Johnson provided a necessary part of HCCC’s business, and she was the only

worker who provided this service. HCCC concedes that this factor supports the

finding of the trial court.

9. Parties’ Beliefs
[19] Johnson testified that she viewed Shanehsaz as her boss. On the other hand,

Johnson filled out a tax form in which she listed herself as an independent

contractor. We find that this factor neither clearly supports nor contradicts the

trial court’s finding.

10. Principal in Business
[20] HCCC, the principal, was in the event staging business. HCCC concedes that

this factor supports the finding of the trial court.

[21] Overall, HCCC concedes that four out of the ten Moberly factors support the

trial court’s finding that Johnson was an employee. Appellant’s Br. p. 22.

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 Although HCCC argues that the remaining six tend to show that Johnson was

an independent contractor, we believe that only Johnson’s method of payment

tends to contradict the trial court’s finding; the remaining five are either

ambiguous or actually support the trial court’s finding.

[22] We will only reverse if HCCC can show that the “judgment is contrary to law

[because] the evidence is without conflict and leads to but one conclusion which

is opposite from that reached by the trial court.” Mayflower Transit, Inc. v.

Davenport, 714 N.E.2d 794, 798 (Ind. Ct. App. 1999). That is certainly not the

case when only one of ten factors cuts against the trial court’s finding and the

remaining nine strongly support it or are ambiguous.

[23] Finally, HCCC argues that we should reverse the trial court’s finding that

Johnson was an employee because such a finding does not accord with how

HCCC has been filing its taxes.

[24] First, we note that this argument was never presented to the trial court, and is

therefore waived. Mitchell v. Stevenson, 677 N.E.2d 551, 558 (Ind. Ct. App.

1997). Even if it were not waived, we fail to see this argument’s relevance.

While we appreciate HCCC’s candor in admitting that it has been improperly

filing its taxes, we find no legal authority for the proposition that this would

affect our Moberly analysis.

[25] The trial court’s finding, that Johnson was an employee of HCCC, is amply

supported by the evidence, and HCCC’s tax argument has no bearing on the

question before us.

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 B. Were the Commissions “Wages”?
[26] The Wage Payment Statute requires that every employer pay its employees “at

least semi-monthly or biweekly, if requested, the amount due such employee”

and that “[p]ayment shall be made for all wages earned to a date not more than

ten (10) days prior to the date of payment.” I.C. § 22-2-5-1. “Employees, upon

separation from employment, must be paid the amount [of wages] due them at

their next and usual payday.” Fardy v. Physicians Health Rehab. Servs., Inc., 529

N.E.2d 879, 882 (Ind. Ct. App. 1988). Failure to pay subjects the employer to a

penalty of up to double the unpaid wages and attorney fees. I.C. § 22-2-5-2.

[27] Although the term “wages” is not statutorily defined for the Wage Payment

Statute, it has been defined in the Wage Claims Act, a definition that courts use

in both contexts: “all amounts at which the labor or service rendered is

recompensed, whether the amount is fixed or ascertained on a time, task, piece,

or commission basis, or in any other method of calculating such amount.” Ind.

Code § 22-2-9-1(b); Highhouse v. Midwest Orthopedic Inst., P.C., 807 N.E.2d 737,

739 (Ind. 2004).

[28] The name given to the method of compensation is not controlling. Gress v.

Fabcon, Inc., 826 N.E.2d 1, 3 (Ind. Ct. App. 2005). Rather, we will consider the

substance of the compensation to determine whether it is a wage and, therefore,

subject to the Wage Payment Statute. Id. We have recognized that wages are

“‘something akin to the wages paid on a regular periodic basis for regular work

done by the employee . . . .’” Id. (quoting Wank v. St. Francis Coll., 740 N.E.2d

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 908, 912 (Ind. Ct. App. 2000)). In other words, if compensation is not linked to

the amount of work done by the employee or if the compensation is based on

the financial success of the employer, it is not a “wage.” Id.

[29] HCCC points to Davis v. All American Siding & Windows, Inc., 897 N.E.2d 936

(Ind. Ct. App. 2008), for support. In that case, a salesperson received a

commission, in addition to a base salary, that was based on the final contract

price negotiated by his company. Id. at 938. The salesperson would negotiate a

preliminary deal with clients, but would then direct those clients to the

company for final negotiations. Id. at 939. The undisputed evidence showed

that the process typically lasted three to eight weeks after the salesperson’s work

had been completed. Id. at 944. Because the commission amount could not be

calculated within ten days, and because the level commission ultimately

depended on work performed by the company rather than the salesperson, we

found that these commissions were not “wages” for purposes of the Wage

Payment Statute. Id.

[30] We find the instant case entirely distinguishable from Davis. In the letter sent

by Johnson to Shanehsaz, which set out her commission schedule, the parties

agreed to specific amounts of remuneration. For example, if Johnson booked a

customer to use the Ballroom, the rental value was $2,000 and Johnson would

receive 40% of that amount. Appellant’s App. p. 46. Similarly specific

amounts are set for the Great Room, the Skylight Room, and the Gallery. Id.

When Johnson successfully booked a customer for these rooms, both she and

HCCC knew precisely the amount of remuneration due. The commissions she

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 earned could be calculated instantly, well within the ten days set out by the

statute. Further, the size of the commission did not depend on the work of

another person or entity; Johnson was the only employee booking clients, and

so her commissions were based on her own labor.

[31] HCCC argues that, because Johnson’s original demand letter requested a

different amount than what the trial court ultimately awarded, the commissions

were inherently incapable of calculation. This argument is unavailing—the trial

court disagreed that Johnson earned several of the commissions listed in her

demand letter. But whether Johnson did certain work that entitled her to wages

is an entirely different inquiry than whether the remuneration was a wage at all.

HCCC has provided no authority for the proposition that a discrepancy

between the wages initially claimed and the wages eventually awarded requires

a reversal, and we decline to adopt such a rule today.

C. Johnson’s Cross-Appeal
[32] Johnson cross-appeals, arguing that the trial court improperly awarded $25,000

in attorney fees after finding that Johnson’s $41,725 in claimed fees were

unreasonable. The trial court noted that this amount was nearly double the

amount of wages Johnson was seeking, which resulted in “concerns as to

whether such amount is reasonable.” Appellant’s App. p. 26. It also

questioned several conferences, emails, and conversations that were related to

Johnson’s refusal to cooperate with document review rather than to proving her

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 case. Finally, the trial court found that Johnson had not proved that this was a

particularly vexing case.

[33] Johnson argues that the trial court’s decision is in conflict with our decision in

R.L. Turner v. Wressel, 44 N.E.3d 26 (Ind. Ct. App. 2015), which was published

just after the trial court’s order. In that case, we affirmed an award of attorney

fees of $99,870 for an unpaid wage claim of $3,852.82. Id. at 29-30. Johnson

concludes from Wessel that, since we have previously affirmed an attorney fee

award with such a large disparity, the trial court in this case committed

reversible error by deciding that the attorney fees should be decreased based on

a smaller disparity.

[34] An award of attorney fees is within the discretion of the trial court. Id. at 38.

We will reverse only when the trial court’s award is clearly against the logic and

effect of the facts and circumstances before the court. Id. We do not reweigh

the evidence; rather, we determine whether the evidence before the trial court

can serve as a rational basis for its decision. Id.

[35] In determining a reasonable amount of attorney fees, consideration should be

given to the nature and difficulty of the litigation; the time, skill, and effort

involved; the fee customarily charged for similar legal services; the amount

involved; the time limitations imposed by the circumstances; and the result

achieved in the litigation. Id. at 39.

[36] We do not believe that Wressel stands for the proposition advanced by Johnson.

In that case, we rejected the employer’s contention that proportionality alone

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 could place a cap on the amount of attorney fees. Id. We never stated that the

amount of wages was irrelevant; instead, we explained that the “recovery is

only one consideration which the court may take into account when

determining what amount of fees are reasonable.” Id.

[37] The trial court did not err by awarding $25,000 in attorney fees. The disparity

between the wages recovered and the attorney fees was only one factor the trial

court relied upon. It also noted that it did not believe several charged items

were necessary to advance Johnson’s case, and that this case was not

exceptionally difficult or complex. To be sure, the trial court would have been

within its discretion to award the full $41,725 claimed by Johnson; but this does

not mean that any amount lower than this would be error. The trial court

found $25,000 to be a reasonable amount of attorney fees, and we will not

second guess that determination.

[38] The judgment of the trial court is affirmed.

Vaidik, C.J., and Najam, J., concur.

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