MAY, Judge.
Lester Spoon was a truck driver who drove for ATF Logistics, sometimes as an employee and sometimes as an independent contractor. He alleges on appeal the trial court should have entered judgment in his favor as to certain deductions from his pay, ATF's last payment to Spoon was late, and the trial court awarded too little in attorney fees.
Lester Spoon was a truck driver for ATF Logistics, a trucking company in Hancock County. He began working for ATF in July 2007 and signed a "Company Driver Contract" at that time. He was an employee until February 5, 2008, on which date he changed his status to independent contractor. On April 25, 2008, he signed a new Company Driver Contract and became an employee again. He ended his employment with ATF on July 9, 2008. His final paycheck was written on July 22, and it was mailed to him.
Spoon sued ATF in September 2009, claiming improper deductions were made from his pay, he was not paid at the agreed-on mileage rate, and his final pay was not timely. Spoon's independent contractor agreement listed various charges for which the contractor was responsible. His Company Driver Contract, by contrast, did not require the employee-driver to pay such charges. The trial court accordingly found a number of ATF's deductions from Spoon's pay were appropriate because Spoon was an independent contractor when the charges were incurred and the deductions made. It found other charges were inappropriate because Spoon was an employee at the time.
The trial court entered findings of fact and conclusions of law. Our standard of review of special findings pursuant to Ind. Trial Rule 52(A) mandates we first determine whether the evidence supports the findings and then whether the findings support the judgment. Borth v. Borth, 806 N.E.2d 866, 869 (Ind. Ct. App. 2004). Because the trial court is charged with determining the credibility of the witnesses, the findings or judgment will not be set aside unless clearly erroneous. Id. Clear error exists where the record does not offer facts or inferences to support the trial court's findings or conclusions of law. Id.
We give due regard to the trial court's ability to assess the credibility of witnesses. Perrine v. Marion Cnty. Office of Child Servs., 866 N.E.2d 269, 273 (Ind. Ct. App. 2007). We defer substantially to findings of fact, but do not do so to conclusions of law. Id. at 273-74. We do not reweigh the evidence; rather we consider the evidence most favorable to the judgment with all reasonable inferences drawn in favor of the judgment. Id. at 274.
Spoon argues the trial court erred in finding certain deductions were legally taken from his paycheck because it did not correctly determine the dates he was an employee rather than an independent contractor.
The trial court found Spoon began his employment at ATF on July 2, 2007, became an independent contractor on February 5, 2008, terminated the independent contractor agreement and entered into a new "Company Driver Contract" on April 25, 2008,
That is so even if an item of evidence is not expressly or directly denied or refuted:
Wright v. Peabody Coal Co., 225 Ind. 679, 687, 77 N.E.2d 116, 119 (1948).
Spoon challenges deductions from his pay for the pay periods February 5-11, 2008, April 15-21, 2008, April 22-28, 2008, and July 8-14, 2008. The evidence before the trial court supported its determination Spoon was an independent contractor during the first three of those periods and his independent contractor agreement permitted the deductions.
As for the deduction attributed to July 2008, when Spoon was again an employee, the Company Driver Contract Spoon signed on April 25, 2008 provided he would be charged a "retrieval fee" for equipment belonging to ATF that it had to retrieve. The trial court heard testimony that Spoon "basically abandoned [ATF's] truck at a truck stop with the keys in it," and ATF had to recover the truck. (Tr. at 68.)
Spoon asserts, without explanation or citation to authority, "factually there was never a question that . . . the deductions were in violation of the Wage Deduction Statute." (Br. of Appellant at 15.) Spoon has waived that allegation of error. When a party does not provide cogent argument and citation to legal authority, its argument is waived for appellate review. See, e.g., Vandenburgh v. Vandenburgh, 916 N.E.2d 723, 730 (Ind. Ct. App. 2009) (party provided no cogent argument explaining why the trial court's omission was erroneous, nor did he support his allegation of error with citation to legal authority: "[t]his does not comply with our rules, which require that contentions in a brief be supported by cogent reasoning and citations to legal authorities. App. R. 46(A)(8)(a). Thus, these issues are waived."). We accordingly cannot address Spoon's suggestion contractual retrieval charges to which Spoon agreed are necessarily "deductions . . . in violation of the Wage Deduction Statute." (Br. of Appellant at 15.)
Ind. Code § 22-2-5-1(b) provides payment shall be made for all wages earned to a date not more than ten business days prior to the date of payment. If an employee voluntarily leaves employment, as did Spoon, the employer is not 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. In Spoon's case, that was July 22, 2008.
ATF's check to Spoon was dated July 22, 2008. There was no provision for direct deposit of the check to Spoon's account. There was evidence before the trial court that Spoon could have picked up the check, but he did not, so it was mailed to him. He cashed it on August 11, 2008.
The record reflects Spoon's last paycheck was written and available to him within the statutory time limit. He offers no argument supported by legal authority to the effect there is no "payment" of a check that is written in a timely manner and timely available to the former employee unless the employee receives it within that time period, in this case the same day the check was written. He has therefore waived that allegation of error. See Vandenburgh, 916 N.E.2d at 730 (contentions in a brief are waived if not supported by cogent reasoning and citations to legal authorities). We express no opinion regarding when "payment" takes place when a final paycheck is timely issued but not received by a former employee until after the due date. But in light of the record before us, we must decline Spoon's apparent invitation to hold there is no "payment" unless a check is cashed, or at least received, on the same day it is issued.
Ind. Code § 22-2-5-2 provides when an employer does not pay wages to an employee as provided in Ind. Code § 22-2-5-1 and the employee brings suit and recovers the amount due, "the court shall order as costs in the case a reasonable fee for the plaintiff's attorney and court costs." The trial court found Spoon had shown $664.90 had been wrongly deducted from his pay, so he was entitled to liquidated damages of $1,329.80, or double the amount of the deductions. See id ("the court shall order, as liquidated damages for the failure to pay wages, that the employee be paid an amount equal to two (2) times the amount of wages due the employee"). It then found $500 was a reasonable attorney fee.
We review the trial court's decision to award attorney fees and the amount thereof under an abuse of discretion standard. In re Moeder, 27 N.E.3d 1089, 1103 (Ind. Ct. App. 2015), reh'g denied, trans. denied sub nom. In Matter of Irrevocable Trust of Mary Moeder, 37 N.E.3d 960 (Ind. 2015). What constitutes reasonable attorney fees is a matter largely within the trial court's discretion. Id. As the judge is considered an expert, we continue to adhere to the view that the judge may judicially know what a reasonable fee is. Id.
A trial court has abused its discretion if its decision clearly contravenes the logic and effect of the facts and circumstances or if the court has misinterpreted the law. R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 457 (Ind. 2012). As such, we continue to review for clear error any findings of fact and de novo any legal conclusions on which the trial court based its decision. Id. We do not reweigh the evidence, but instead determine whether the evidence before the trial court could serve as a rational basis for its decision. DePuy Orthopaedics, Inc. v. Brown, 29 N.E.3d 729, 732 (Ind. 2015), reh'g denied. The trial court's attorney fee award was not clearly erroneous or otherwise an abuse of discretion.
Our Rules of Professional Conduct give us guidance as to factors to be considered in determining the reasonableness of attorney fees. Benaugh v. Garner, 876 N.E.2d 344, 347 (Ind. Ct. App. 2007), trans. denied. Ind. Professional Conduct Rule 1.5(a) lists non-exclusive factors to be considered: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.
The trial court is entitled to consider the amount involved in the lawsuit in determining the reasonableness of the requested fees, but the trial court abuses its discretion if it reduces an otherwise reasonable fee request based on the amount of the judgment. Benaugh, 876 N.E.2d at 348 (Ind. Ct. App. 2007). In determining the reasonable value of the legal services rendered, the time expended by the attorney alone is not a controlling factor. Consideration may also be given to the general quality of the effort expended by the attorney. Galanis v. Lyons & Truitt, 715 N.E.2d 858, 862 (Ind. 1999).
Spoon's counsel relies throughout his argument on Alvis v. Prof'l Account Serv., Inc., 2010 WL 3853339 (Ind. Ct. App. 2010), an unpublished disposition. We remind counsel that Indiana Appellate Rule 65(D) prohibits the use of memorandum decisions as precedent and permits the citation of such decisions only by the parties to the case and only to establish res judicata, collateral estoppel, or law of the case. We therefore will not consider argument based on that decision.
The purpose of the Ind. Code § 22-2-5-2 fee shifting provision is to deter employers from playing "fast and loose with wage obligations" by imposing treble damages and attorney's fees for non-compliant employers. R.L. Turner Corp. v. Wressell, No. 06A05-1411-PL-540, 2015 WL 5438398, at *10 (Ind. Ct. App. 2015) (quoting St. Vincent Hosp. & Health Care Ctr., Inc. v. Steele, 766 N.E.2d 699, 706 (Ind. 2002)). As explained above, we cannot say ATF played "fast and loose" with its obligations toward Spoon. The trial court listed, by exhibit, all the wage deductions Spoon challenged. It found three were proper and five were not. Whether the deductions were appropriate turned on whether Spoon was an employee or independent contractor at the time of the deduction, and the testimony and documentary evidence presented at trial reflected some disagreement regarding Spoon's status on those dates.
As noted above, we cannot say Spoon's final paycheck was late. The trial court rejected Spoon's claim he was not paid at the agreed-on mileage rate, which claim Spoon does not pursue on appeal. In short, the record does not indicate ATF needed to be deterred from playing "fast and loose" with its obligations toward Spoon. And see id. at *11 (acknowledging "the policy dilemma faced by lawmakers in striking an appropriate balance between (1) creating a mechanism which helps employees vindicate wage claims and (2) the risk of exploitation of that mechanism by attorneys to the detriment of employers").
The trial court heard testimony that called into question some of the attorney fees Spoon's counsel sought to recover. ATF's counsel questioned Spoon's counsel about a charge of two hundred dollars for review of a "five or six sentence, one page motion," and why ATF should pay for counsel's review of a motion that "involves [Spoon] not prosecuting the case"?
Nor can we say the relatively low award was an abuse of discretion in light of the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly. See Prof. Cond. R. 1.5(a). As the discussion above indicates, this was a dispute over a relatively small amount of money and all aspects of the dispute turned on the resolution of simple fact questions about calendar dates and contractual provisions. We agree with ATF that this was "a relatively simple wage claim argument, wherein only two witnesses were called." (Br. of Appellee at 22.)
We cannot say the trial court's award of $500, rather than the over $13,000 Spoon requested, was an abuse of discretion.
There was evidence to support the dates when Spoon was a private contractor and we will not reweigh it. Spoon did not establish his last paycheck was late, and the amount of attorney fees awarded him was not an abuse of discretion.
We therefore affirm.
Affirmed.
Crone, J., and Bradford, J., concur.
Spoon's incomplete appendix impaired our review, and violates App. R. 50(A)(2)(g), which requires inclusion of "essential portions of a contract . . . that are important to a consideration of the issues raised on appeal." We remind Spoon's counsel that the purpose of the appendix is to present us with "parts of the record on appeal that are necessary for the Court to decide the issues presented." (App. R. 50(A)(1)). That purpose is frustrated when the appendix includes only self-serving information and excludes crucial information on which the trial court's judgment was based.
(Tr. at 95-96.) We admonish counsel to re-familiarize himself with our appellate rules so that violations such as this one, and the numerous other serious violations noted in our opinion above, might be avoided.
