I concur as to Part I of Justice Sullivan's opinion, but write separately to address Part II. As we explained in GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind.2001), in reviewing a case in this procedural posture, "we affirm the judgment of the trial court on any legal theory the evidence of record supports." We further emphasized that "the ruling of the trial court is presumptively correct, and we will reverse on the basis of an incorrect factual finding only if the appellant persuades us that the balance of evidence is tipped against the trial court's findings." Id.
Reviewing the evidence anew, Justice Sullivan's opinion finds that a Mul-lens/Agritek employment relationship is indicated by all of the factors enumerated in GKN Co. I disagree.
Beginning with the presumption that the trial court ruling is correct, as required by GKN Co., Agritek has not persuaded me that "the balance of evidence is tipped against the trial court's findings." 744 N.E.2d at 401. Mullens was employed by Martin, not hired as an employee of Agri-tek. Throughout Mullens's employment, she was paid by Martin. Agritek's 1991 Christmas check, which plaintiff contends was intended as a gift and not as compensation for labor, pales in comparison to the two years of Mullens's compensation paid by Martin. Mullens believes that she was employed by Martin, not Agritek. The frequency of contact between Mullens and Agritek does not convince me that Agri-tek's right to control Mullens was superior to Martin's. Mullens performed all her duties at a facility leased and supervised by Martin. Further, Mullens's rate of pay, benefits, working hours, and permission for medical, vacation, and holiday absences were all determined by Martin, not Agri-tek.
I am satisfied that the evidence of ree-ord supports the judgment of the trial court, and that the presumption of correctness of the trial court's ruling has not been overcome. I believe that the trial court should be affirmed on this issue.
BOEHM, J., concurs. SHEPARD, C.J., and SULLIVAN, J., dissent. RUCKER, J., not participating.