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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: MARK J. PIZUR Tabbert Hahn Earnest & Weddle, LLP Indianapolis, Indiana

ATTORNEY FOR APPELLEE: RHONDA YODER BREMAN Bose McKinney & Evans LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JOHNNY L. MILLER, Appellant-Plaintiff, vs. KARESH ENTERPRISES, INC. d/b/a FITNESS TOGETHER, Appellee-Defendant. ) ) ) ) ) ) ) ) ) )

No. 29A04-0702-CV-100

APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable J. Richard Campbell, Judge The Honorable David K. Najjar, Magistrate Cause No. 29D04-0606-SC-1084

October 19, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Johnny L. Miller appeals the small claims court's judgment in favor of Karesh Enterprises, Inc., d/b/a Fitness Together ("Fitness Together") on his complaint alleging that Fitness Together wrongfully withheld wages in violation of the Indiana Wage Payment Statute and seeking liquidated damages and attorney's fees. We affirm. Issue Miller raises two issues, which we consolidate and restate as whether the small claims court's judgment in favor of Fitness Together was clearly erroneous. Facts and Procedural History The evidence in support of the judgment indicates that on January 27, 2006, John Karesh ("Karesh"), owner of Fitness Together, hired Miller as a personal trainer. Fitness Together paid their employees on the 1st and 16th of each month, and the employees received their paychecks on the premises of Fitness Together. Tr. at 25-26. Accordingly, Miller picked up all his paychecks at Fitness Together. Id. at 13. Fitness Together did not mail Miller's paychecks to him. On May 24, 2006, Karesh and Miller were at Fitness Together. Karesh had discovered that Miller's non-compete agreement was missing from his personnel file. Id. at 23. Karesh asked Miller to sign another non-compete agreement and to complete a new W-2 form. Miller completed the W-2 form but did not sign the non-compete agreement. Later that day, Karesh telephoned Miller. They discussed Miller's failure to sign the non-compete form, and Miller voluntarily terminated his employment effective immediately.

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On June 1, 2006, Miller's next scheduled payday, Fitness Together issued his paycheck. Id. at 25. Karesh put the check in an envelope with Miller's name on it. Id. at 26. He expected Miller to come in and pick up the check. Id. Miller did not do so. On June 22, 2006, Miller filed a small claims complaint against Fitness Together alleging the following: [Miller] has earned and is due and owing wages in the principle amount of $795.00 from [Fitness Together]. Said wages were scheduled to be paid on [June 1, 2006]. [Fitness Together] failed to make said wage payment on [June 1, 2006]. On [June 7, 2006] [Miller] contacted [Fitness Together] and made a demand for said wages. [Fitness Together] refuses to pay said wages to [Miller][.] [Fitness Together] is in violation of Indiana's Wage Payment Statute, Ind. Code

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