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ATTORNEY FOR APPELLANT
J. Bradley Schooley Hostetler & Kowalik, P.C. Indianapolis, Indiana

ATTORNEY FOR APPELLEE
Stephen C. McNutt Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE
for Comm'r, Ind. Department of Labor Cody Kendall Indianapolis, Indiana for Ind. St. Bldg.&Const.Trades Council Neil E. Gath and Geoffrey S. Lohman Fillenwarth Dennerline Groth & Towe Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court
_________________________________ No. 49S05-0509-CV-399

DAVID A. RYKER PAINTING CO., INC.,
V.

Appellant (Defendant below),

GEORGE E. NUNAMAKER,

Appellee (Plaintiff below). _________________________________

Appeal from the Marion Superior Court, No. 49D12-0103-CP-377 The Honorable Robyn L. Moberly, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-0405-CV-252 _________________________________ June 29, 2006 Dickson, Justice

In this labor wage dispute asserting application of the Indiana Wage Payment Statute, the defendant, David A. Ryker Painting Company, Inc., appeals the trial court's judgment in favor of an employee, the plaintiff, George E. Nunamaker. We reverse.

The plaintiff filed suit against Ryker Painting for punitive damages and attorney fees pursuant to the Wage Payment Statute after the defendant's alleged failure to pay him at a proper

rate in a timely manner for work performed on a painting project for the Tipton Community School Corporation in Tipton, Indiana. After the parties stipulated to all material facts and documentary evidence, the trial court entered a judgment in favor of the plaintiff for $6,289.92, plus attorney fees of $3,000.00. The Court of Appeals reversed, finding the Wage Payment Statute inapplicable because "the legislature could not have intended that a company be required to pay treble damages every time a good faith dispute as to wages arises." David A. Ryker Painting Co., Inc. v. Nunamaker, 818 N.E.2d 989, 992 (Ind. Ct. App. 2004). We granted transfer.

Among the issues presented on appeal, we find determinative Ryker Painting's contention that the plaintiff's claims for liquidated damages and attorney fees under the Wage Payment Statute are barred because the defendant did not fail to make a timely payment of the amount due to the plaintiff.

In March 1998, Ryker Painting contracted to perform painting work as a subcontractor for Summit Construction Company, Inc., the general contractor on the project. Addendum No. 1 to the contract includes a schedule titled "Common Construction Wage Determination" ("CCWD"), which is made applicable to the project. See Appellant's App'x. at 18-21. The CCWD schedule lists various types of workers (e.g. bricklayer, carpenter, cement mason, electrician, ironworker, laborer, etc.), and specifies rates for base wages and other hourly compensation for each, depending on whether they are "skilled," "semiskilled," or "unskilled." For workers classified as "Painter, Brush & Roller," no amounts are shown for "semiskilled" and "unskilled," but only for "skilled." Id. at 20. Summit did not provide Ryker Painting with the addendum or its CCWD schedule, and Ryker Painting prepared its bid based on its customary hourly wage rates. Id. at 10. The parties agree that the plaintiff worked for Ryker Painting on the project as a semiskilled painter from the week ending November 11, 1998, through December 22, 1999, and was paid at Ryker Painting's standard rate for semiskilled painters. Id. at 11. In response to a Common Construction Wage Complaint filed in late 1999 on behalf of the plaintiff with the Indiana Department of Labor, the Department conducted an audit of the plaintiff's wages and, without explanation, issued its determination that the "amount due employee" was $3,144.96. Id. at 33-35. This determination required Ryker Painting to pay the plaintiff the difference between the total wages already paid and those computed at the CCWD "skilled" wage rate, regardless of

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the plaintiff's actual skill classification. Id. at 12, 35. The audit determination was issued on September 8, 2000, and fourteen days later, Ryker Painting paid the plaintiff $3,144.96, the full difference between the Department's determination and the wages already paid. On March 8, 2001, the plaintiff filed his complaint seeking liquidated damages and attorney fees under the Wage Payment Statute for Ryker Painting's alleged delay in paying the full amount of his wages as ultimately determined by the Department of Labor.

In entering judgment for the plaintiff, the trial court expressed its belief that the Wage Payment Statute was "mandatory in nature and the Court must award liquidated damages and reasonable attorney fees if the employer failed to make payment of wages due the employee." Appellant's App'x. at 94. The trial court noted but disregarded that "there was arguably a fair dispute" about whether the plaintiff was entitled to wages as a skilled worker and based its decision on the fact that "nonetheless the Plaintiff was due wages . . . after determination by the Dept. of Labor." Id. Considering the language of its judgment and noting that the case was presented by the parties based upon an agreed stipulation of fact, we understand the trial court to have resolved this case as a matter of law and not based upon its evaluation of disputed facts.

The Wage Payment Statute requires employers to "pay each employee at least semimonthly or biweekly, if requested, the amount due the employee." Indiana Code

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