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FOR PUBLICATION

ATTORNEY FOR APPELLANT: JEFFREY K. EICHER Greenfield, Indiana

ATTORNEYS FOR APPELLEE: DAVID A. SHELTON MARK J. PIZUR Tabbert Hahn Earnest & Weddle Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
CAREY D. HELMUTH, Appellant-Plaintiff, vs. DISTANCE LEARNING SYSTEMS INDIANA, INC., Appellee-Defendant. ) ) ) ) ) ) ) ) ) )

No. 49A05-0411-CV-588

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Kenneth H. Johnson, Judge Cause No. 49D02-0112-CP-1869

November 30, 2005

OPINION FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Carey Helmuth appeals from the trial court's judgment in his favor on his complaint seeking payment of commissions and un-reimbursed employment expenses following the termination of his employment with Distance Learning Systems Indiana, Inc. ("Distance"). The trial court entered judgment for Helmuth in the amount of

$540.48. Helmuth filed a motion to correct error and Distance filed a cross-motion to correct error. The trial court denied Helmuth's motion, and granted Distance's motion. Then, the trial court entered a final judgment for Helmuth in the amount of $270.84, which represented his un-reimbursed employment expenses. presents the following issues for our review: 1. Whether the trial court erred when it concluded that Helmuth was not entitled to the disputed commissions. Whether the trial court erred when it failed to award attorney's fees and statutory damages to Helmuth under the Indiana Wage Payment Statute. Helmuth appeals and

2.

Distance cross-appeals and presents the following issues for our review: 1. Whether the trial court erred when it refused to award Distance its costs incurred after Helmuth rejected Distance's settlement offer. Whether Distance is entitled to an award of reasonable attorney's fees under Indiana Appellate Rule 66(E).

2.

We affirm in part, reverse in part, and remand with instructions. FACTS AND PROCEDURAL HISTORY Distance is an educational publishing company that publishes and markets educational materials to individuals to enable them to obtain college credits through external education. Helmuth began working as a sales representative for Distance in
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2001. The parties did not reduce their employment agreement to writing. However, the evidence indicates that Helmuth's primary duty was to enroll students in Distance's education programs. For each student he enrolled, Distance paid Helmuth ten percent of the enrollment fee, up to a maximum of $250. After Helmuth enrolled a student,

Distance paid him in three installments. Distance characterized these installments as a draw against future commissions because the enrolled students were free to cancel, default, or otherwise abandon their financial obligations. If a student stopped making payments, Distance assessed the sales representative who enrolled the student a chargeback. Essentially, that allowed Distance to reduce the sales representative's future installments on commissions in proportion to the amount that the student who cancelled did not pay. Helmuth worked for Distance for approximately six months before he voluntarily resigned. After his resignation, Helmuth requested commissions he claimed he had earned and un-reimbursed travel expenses. Distance denied that he was entitled to commissions post-termination. Helmuth filed a complaint against Distance seeking

unpaid commissions and un-reimbursed employment expenses. He also sought treble damages and attorney's fees for the non-payment of wages under Indiana Code Section 22-2-4-4. 1 Following a bench trial, the trial court entered a general judgment in favor of Helmuth for his employment expenses. Helmuth filed a motion to correct error, and Distance filed a cross-motion to correct error. The trial court granted Distance's cross-

In his motion to correct error and on appeal, Helmuth alleged that he was entitled to damages under Indiana Code Sections 22-2-5-1 and 22-2-5-2. Thus, we address his claims under those sections, not Indiana Code Section 22-2-4-4.

1

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motion to correct error and entered a final judgment in favor of Helmuth for $270.84. This appeal ensued. DISCUSSION AND DECISION Standard of Review Where a party who had the burden of proof at trial appeals, he appeals from a negative judgment and will prevail only if he establishes that the judgment is contrary to law. Clark v. Crowe, 778 N.E.2d 835, 839 (Ind. Ct. App. 2002). A judgment is contrary to law when the evidence is without conflict and all reasonable inferences to be drawn from the evidence lead to only one conclusion but the trial court reached a different conclusion. Id. Where, as here, the trial court entered a general judgment, the judgment will be affirmed if it can be sustained upon any legal theory consistent with the evidence. See Dierckman v. Area Planning Comm'n, 752 N.E.2d 99, 103 (Ind. Ct. App. 2001), trans. denied. In making this determination, we neither reweigh the evidence nor judge the credibility of witnesses. Id. Rather, we consider only the evidence most favorable to the judgment together with all reasonable inferences to be drawn therefrom. Id. Issue One: Commissions Helmuth contends that the trial court's "extremely low judgment" is clearly erroneous and contrary to law. Appellant's Brief at 5. More specifically, Helmuth asserts that he did not forfeit commissions he had earned while employed by Distance when he voluntarily resigned because, according to our holding in Vector Eng'g & Mfg. Corp. v. Peuquet, 431 N.E.2d 503 (Ind. Ct. App. 1982), the "general rule is that a person employed on a commission basis to solicit sales orders is entitled to his commission when
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the order is accepted by his employer." Vector, 431 N.E.2d at 505. "The general rule may be altered by a written agreement by the parties or by the conduct of the parties which clearly demonstrates a different compensation scheme." Id. Based on our holding in Vector, Helmuth claims that because his employment contract with Distance was "oral and not written," Distance "had no authority whatsoever to withhold [his] earned commissions after his employment was terminated." Appellant's Brief at 8. As noted above, the evidence indicates that when a salesperson successfully enrolled a student, Distance paid him up to $250 in three installments. If that student subsequently cancelled payments or defaulted on his loan, Distance would chargeback all but ten percent of the amount that the student actually paid. Distance provided its salespeople with commission payment summaries, which indicated whether a student was current on his payment obligation or whether he had defaulted. Further, Distance

presented evidence that its salespeople were only entitled to commissions while employed by Distance. Helmuth contends that Distance did not inform him that only current employees were entitled to commissions. He directs us to the general rule first outlined by this court in Vector that a person employed on a commission basis to solicit sales orders is entitled to his commission when the order is accepted by his employer. He claims that Vector controls and precludes Distance from withholding his commissions. We agree that Vector and its progeny control, but we cannot agree that Helmuth is entitled to commissions post-termination.

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In Vector, we stated that parties may alter the general rule that an employee is entitled to commissions when the employer accepts the order if the parties agree in writing or if the conduct of the parties clearly demonstrates a different compensation scheme. See Vector, 431 N.E.2d at 505. Helmuth contends that our decision in

Robinson v. Century Personnel, Inc., 678 N.E.2d 1268 (Ind. Ct. App. 1997), trans. denied, modified the exception to the general rule in that now, "only a written agreement can cause an employee to forfeit commissions payable after the employee's termination." Appellant's Reply Brief at 3. In particular, Helmuth relies on the following language from our opinion in Robinson: "[The] general rule may be altered by a written agreement which clearly demonstrates a different compensation scheme." Robinson, 678 N.E.2d at 1270. He claims that because the words "or the conduct of the parties" were omitted from our opinion in Robinson, we modified the rule first announced in Vector so that the general rule may be altered only by a written agreement. But Robinson does not stand for the proposition that only a written agreement may alter the general rule. Rather, Robinson involved a written employment contract and our decision merely applied the rule to the particular facts in that dispute. In Robinson, there was no reason to examine the "conduct of the parties" because the parties had executed a written agreement. Further, in our subsequent opinion in J Squared, Inc. v. Herndon, 822 N.E.2d 633, 638 (Ind. Ct. App. 2005), we reaffirmed the entire exception to the general rule from Vector, including the "conduct of the parties" language. Accordingly, Helmuth's reliance on Robinson and his insistence that he must prevail because the parties did not create a written agreement are misplaced.
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While Distance does not contend that the parties executed a written agreement, it does maintain that the conduct of the parties established a compensation scheme that precluded Helmuth from receiving commissions after he ceased working for Distance. Distance presented evidence that "future commissions are subject to chargeback," and "they are also forfeited as of the date a sales representative terminates his employment relationship." Appellee's Brief at 21. In particular, Ann Reiter, Vice President of Distance, testified that salespersons are informed that they are not entitled to commissions post-termination because "[Distance has] a four-year risk, and students can stop paying on their contracts at any point in time. And if they are not paying, then the commission hasn't truly been earned." Transcript at 163. Upon questioning by the court, Reiter stated: The chargeback occurs when the student has stopped paying for a period of a minimum of 60 days and the finance company can't do anything at that. . . you know, we're not getting any money. So, on the next pay period, then, we would calculate every bit of payment through the finance company, how much the student's paid, how much the [salesperson] was paid, and then [the salesperson is] allowed to retain ten percent of what the student has paid. Id. at 172. In addition, Brenda Whitham, a bookkeeper for Distance, testified that Helmuth would have received future commissions "had he still been an employee of Distance." Id. at 191. When asked why Helmuth was not entitled to receive future commissions, Whitham testified, "[h]e terminated." Id. Still, Helmuth maintains that the conduct of the parties shows that he was entitled to commissions post-termination. In particular, he notes that he was not subject to any chargebacks during his employment, nor did Distance inform him of the company's
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chargeback policy. But Helmuth was only employed at Distance for six months, and there is no evidence that any of his clients had defaulted during that time. In addition, Helmuth alleged that the parties had a verbal contract that entitled him to commissions post-termination. Although the lack of chargebacks during Helmuth's short tenure at Distance is of no assistance to us in determining the conduct of the parties, there is evidence showing that Distance informed its employees when they were hired of the chargeback policy and that they were entitled to commissions only during their employment. While Helmuth disputed that he was informed of these policies, we cannot reweigh the evidence or judge the credibility of witnesses on appeal. See Dierckman, 752 N.E.2d at 103. Thus, Helmuth's subsequent conduct in accepting employment with Distance indicates that he acquiesced in those terms of employment. In sum, the evidence supports the trial court's determinations that the conduct of the parties established the validity of chargebacks because the commissions for enrolled students "were vested subject to a condition subsequent." See Vector, 431 N.E.2d at 505. In particular, Helmuth's right to commissions was divested when the students he enrolled cancelled payment or defaulted, or when he ceased working for Distance. See id. Thus, there is evidence to support the trial court's conclusion that the compensation scheme precluded Helmuth from receiving commissions after he resigned. To reiterate, where the trial court enters a general judgment, the judgment will be affirmed if it can be sustained upon any legal theory consistent with the evidence. Dierckman, 752 N.E.2d at 103. In making this determination, we neither reweigh the
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evidence nor judge the credibility of witnesses. Id. Here, Helmuth essentially asks us to reweigh the evidence, which we cannot do. The trial court did not err when it did not award Helmuth compensation for his unpaid commissions. Issue Two: Indiana Wage Payment Statute Next, Helmuth contends that the trial court erred when it did not award him damages under the Indiana Wage Payment Statute for commissions Distance refused to pay him after he resigned. Because we conclude that the trial court did not err when it determined that Helmuth was not entitled to commissions after he resigned, we need not address that issue. Still, Helmuth alleges that the trial court's judgment is contrary to law because Distance admitted during trial that, due to an accounting oversight, it had failed to pay him $500 in commissions he had earned while employed by Distance. In

particular, Helmuth alleges that Distance violated Indiana Code Sections 22-2-5-1 and 22-2-5-2, which entitled him to recover the amount owed, liquidated damages, and attorney's fees. We must agree. Initially, we note that commissions are wages within the meaning of Indiana Code Section 22-2-5-2. J Squared, Inc., 822 N.E.2d at 640 (citing Licocci v. Cardinal

Associates, Inc., 492 N.E.2d 48, 56 (Ind. Ct. App. 1986)). And Indiana Code Section 222-5-1 provides: (a) Every person, firm, corporation, limited liability company, or association, their trustees, lessees, or receivers appointed by any court, 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, by negotiable check, draft, or money order, or by electronic transfer to the financial institution designated by the employee. Any contract in violation of this subsection is void.
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(b) Payment shall be made for all wages earned to a date not more than ten (10) days prior to the date of payment. However, this subsection does not prevent payments being made at shorter intervals than specified in this subsection, nor repeal any law providing for payments at shorter intervals. 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. If an employee leaves employment voluntarily, and without the employee's whereabouts or address being known to the employer, the employer is not subject to section 2 of this chapter until: (1) ten (10) days have elapsed after the employee has made a demand for the wages due the employee; or the employee has furnished the employer with the employee's address where the wages may be sent or forwarded.

(2)

If an employer fails to make payment of wages in accordance with that section, then the employer: as liquidated damages for such failure, [shall] pay to such employee for each day that the amount due to him remains unpaid ten percent (10%) of the amount due to him in addition thereto, not exceeding double the amount of wages due, and said damages may be recovered in any court having jurisdiction of a suit to recover the amount due to such employee, and in any suit so brought to recover said wages or the liquidated damages for nonpayment thereof, or both, the court shall tax and assess as costs in said case a reasonable fee for the plaintiff's attorney or attorneys. St. Vincent Hosp. & Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699, 702-03 (Ind. 2002) (quoting Ind. Code

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