GHPE Holdings, LLC, d/b/a Godby Heating Plumbing Electrical v. Jason Huxley

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

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 (“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

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 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.

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 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

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 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

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 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).

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 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

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 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.

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 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”

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 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.

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 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.

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 (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

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 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

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 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

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 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

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 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
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 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.

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[28] Affirmed in part, reversed in part, and remanded.

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

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